USCIS has recently released guidance regarding the precedent decision made by the Administrative Appeal Office in Matter of Simeio Solutions LLC. Under the decision, employers must file a new or amended H-1B petition, along with an updated Labor Condition Application (LCA), if an H-1B worker is transferred to a different geographical area than the one listed on initial visa application documents. Below we will take a closer look at the new USCIS guidance.
When You Must File an Amended Petition
An amended H-1B petition must be filed if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Please note that once an amended petition has been filed, the H-1B employee can immediately begin to work at the new location. It is not necessary to wait for a final decision on the amended petition before the H-1B employee can start work at the new location.
When You Do NOT Need to File an Amended Petition
• A move within a Metropolitan Statistical Area: If the H-1B employee is moving to a new job location within the same MSA or area of intended employment, a new LCA is not required. Therefore, an amended petition does not need to be filed. However, the original LCA must be posted in the new work location.
• Short term placements: Under certain circumstances, an H-1B employee may be placed at a new job location for up to 30 days, and in some cases up to 60 days (where the employee is still based at the original location), without obtaining a new LCA.
• Non-worksite locations: If the H-1B employee is only going to a non-worksite location, an amended H-1B petition is not required. A location is considered “non-worksite” if:
– The H-1B employee is going to participate in an employee developmental activity, such as management conferences or staff seminars;
– The H-1B employee spends little time at any one location; or
– The job is “peripatetic in nature,” such as situations where the primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e. not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and occasionally to other locations).”
Filing Amended H-1B Petitions
• If an H-1B employee was changing worksite locations at the time of the Simeio Solutions decision, the employer has 90 days from May 21, 2015, to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if an amended petition has not been filed for an H-1B worker who moved worksite locations before May 21, 2015, you have until Aug. 19, 2015 to file an amended petition.
• If the H-1B worker has changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against the employer or the employees if the employer, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in a MSA or area of intended employment by May 21, 2015. However, as previously stated, an amended H-1B petition must be filed for these H-1B employees by Aug. 19, 2015.
• If an amended petition is not filed for these employees by Aug. 19, 2015, the employer will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, the H-1B employee would not be maintaining their nonimmigrant status and would also be subject to adverse action.
• If the amended H-1B petition is denied, but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
• If the previously filed amended H-1B petition is still pending, the employer may still file another amended petition to allow the H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.
If you believe you may be required to file an amended H-1B petition or are interested in applying for H-1B status, please contact our office to schedule a consultation with one of our attorneys!