United States Citizenship and Immigration Services (USCIS) released final guidance regarding when employers are required to file an amended or new H-1B petition following a change to an employee's worksite. This guidance follows the April 9, 2015, Administrative Appeals Office (AAO) precedent decision in Matter of Simeio Solutions, LLC (Simeio) and is effective July 21, 2015; superseding prior guidance.
Matter of Simeio Solutions, LLC
The AAO held in Simeio that a change in the place of employment of an H-1B employee to a geographical area that requires a corresponding Labor Condition Application (LCA) to be filed and certified is a material change in the terms and conditions of the H-1B employment. As such, the change in worksite requires the employer to file an amended or new H-1B petition with a corresponding LCA before placing the employee at the new worksite. Prior to Simeio, a change in worksite was not generally considered to be a material change and did not create an obligation for an employer to file an amended petition.
When to File an Amended or New H-1B Petition
Under the final guidance, an H-1B employer must file an amended or new H-1B petition if an H-1B employee changes his or her location of employment to a geographical area that requires a corresponding LCA to be filed and certified, even if a new LCA has already been certified and posted at the new location.
- If an H-1B employee moved to the new location of employment on or before April 9, 2015, USCIS has indicated that they will generally not pursue denial or revocation solely based upon an employer’s failure to file an amended or new petition regarding that move after July 21, 2015. In such instance, an employer may, as a safe harbor, wish to file an amended or new petition to request a change in the place of employment that occurred prior to April 9, 2015. USCIS has indicated that they will consider filings during this safe harbor period to be timely and not subject to adverse action. To receive this benefit, the new or amended petition must be filed no later than January 15, 2016.
- If an H-1B employee moved to a new location of employment after April 9, 2015, but prior to August 19, 2015, the employer must file an amended or new H-1B petition by January 15, 2016. If an employer fails to file an amended or new petition during this window, both the employer and employee will be considered out of compliance with H-1B regulations and subject to adverse action.
- If an H-1B employee moves to a new location of employment on or after August 19, 2015, the employer must file an amended or new petition before the H-1B employee begins work at the new location.
A change in an H-1B employee’s location of employment only triggers a need to file an amended or new petition where the change also requires a corresponding new LCA. As such, there are several notable exceptions that may prevent an employer from needing to file an amended or new petition.
- New Job Location within The Same Area of Intended Employment: If an H-1B employee moves to a new job location within the same geographical area of intended employment covered on the original LCA, a new LCA will not generally be required, and therefore it is not necessary to file an amended or new H-1B petition. However, the employer must post the original LCA covering the H-1B employee at the new work location in compliance with LCA regulations before the employee moves.
- Short-Term Placements: Under certain circumstances, short-term placements of H-1B employees at worksites other than those listed on the original LCA may not necessitate the filing of an amended or new H-1B petition if the placement does not exceed up to 30 days or, in some cases, 60 days if based at a home worksite.
- Non-Worksite Locations: An amended or new H-1B petition may not be required if the H-1B employee is going to a non-worksite location, such as to participate in an employee developmental activity, a location where the employee spends little time, or traveling worksites that the employee visits on a casual, short-term and limited basis not to exceed 5 workdays for any one visit by a traveling employee or 10 consecutive workdays by an employee who spends most work time at a home worksite.
In light of Simeio and subsequent USCIS guidance, employers should review existing H-1B petitions to determine if there has been a change in the covered employee’s location of employment and, if so, whether an amended petition is needed. Employers should identify the date the change went into effect and assess whether an amended or new petition should be filed in their discretion and/or is required to be filed in order to remain compliant with H-1B regulations.
Employers should then take action to file any necessary amended or new petitions prior to January 15, 2016. If an employer is required to file an amended petition and fails to do so, they will fall out of compliance with H-1B regulations and the covered employee will be considered out of lawfully maintained nonimmigrant status, subjecting both the employer and employee to adverse action.
If an employer knows an H-1B employee will be changing his or her location of employment in the future, they will want to plan accordingly in advance of the change to ensure adequate time to file an amended or new petition before the H-1B employee makes the move. It is only necessary that the amended or new petition be filed, but not approved, before the employee moves to the new location.