If your H1-B employee changes worksites, must you, the employer, file an amended H-1B petition with USCIS? Yesterday USCIS released a new policy memorandum answering this question. By interpreting the April 9, 2015 case Matter of Simeio Solutions, LLC, USCIS is clarifying an employer’s obligations regarding LCAs and amended H1-B petitions. 26 I&N Dec. 542 (AAO 2015). The new guidance is effective immediately.
When a new LCA and Amended or New H1-B Petition are Required
Simeio requires H1-B employers to file an amended or new H-1B petition when an employee moves to a new geographical area, such that a new LCA (Labor Certification Application) is required, because this is a “material change” in the terms and conditions of employment. Once a petitioner files the new H1-B petition, the employee can start working in the new location right away, while the H-1B is pending.
When Nothing Needs to Be Done with USCIS
Some employee’s moves don’t require an amended H1-B petition. If the move is within the same “area of intended employment,” neither a new LCA nor an amended H1-B is required. However, the original LCA must be re-posted in the new work location. Likewise, a “short-term placement” of up to 30 days (and sometimes 60 days, if the employee is still based out of the home worksite) is ok without a new LCA and without an amended petition. Finally, a “non-worksite” location, such as a conference or for employees who don’t spend much time in any location, doesn’t require a new LCA or an amended H1B.
What Employers Must Do
Employees Who Moved before April 9, 2015
For H-1B employees who moved to a new worksite in a new Metropolitan Statistical Area (MSA) prior to April 9, 2015, USCIS generally won’t deny or revoke I-129 petitions for H1-Bs solely based upon a failure to file an amended or new petition regarding that move after July 21, 2015. However, if other USCIS determines that other violations have occurred, USCIS will pursue denials and revocations based on a failure to file an amended petition.
However, if you have already received a notice of intent to revoke, revocation, request for evidence, notice of intent to deny, or denial before July 21, 2015, it will still remain in effect.
Safe Harbor for Moves Prior to April 9, 2015
If an employer, in his or her discretion, wants to file an amended or new petition to request a change in the worksite for a move that happened before April 9, 2015, there is a safe harbor period for the employer to file before January 15, 2016. USCIS will consider these filings “timely.”
When Employees Moved Between April 9 and August 19, 2015
If an employee’s worksite changed to a new Metropolitan Statistical Area between April 9, 2015 and August 19, 2015, a new LCA is required and the employer must file a new or amended petition with USCIS prior to January 15, 2016. If the employer fails to do so, the employer will be out of compliance and subject to adverse action by USCIS. Likewise, the employee will fail to maintain nonimmigrant status and be subject to adverse action, such as a notice of intent to revoke.
When Employees Change Worksites After August 19, 2015
Employers must always file a new LCA and an amended or new H1-B I-129 petition for any employee moving to a new worksite in a new Metropolitan Statistical Area prior to the employee’s start at the new worksite. Once it is filed and pending the employee may begin working in the new location.
