USCIS recently issued additional guidance that addresses the steps an employer must take to change an H-1B worker’s job location. This guidance follows the United States Citizenship and Immigration Service (USCIS) Administrative Appeals Office’s (AAO) decision in the Matter of Simeio Solutions LLC, case and addresses when an amended H-1B petition is required in light of this new case.
This guidance reiterates that an amended petition is required if an H-1B employee has changed or is going to change his or her place of employment to a worksite outside of the metropolitan statistical area (MSA) or “area of intended employment” covered by the existing H-1B petition. This is true even if a new Labor Condition Application (LCA) has been filed with the United States Department of Labor and has been posted at the new location. Note that there’s no need to wait for approval, as a person in H-1B status can immediately begin work at the new location upon filing the amended petition.
According to this guidance, no amended petition is required in the following scenarios:
In those cases, the guidance makes clear that an amended petition must be filed before August 19, 2015.
Failure to file an amended petition, where required, will result in the employer being found “out of compliance with USCIS regulation and policy and thus subject to adverse action.” In addition, the H-1B employee would not be maintaining nonimmigrant status and would be subject to “adverse action”.
The original petition remains valid and the H-1B employee may return to the worksite indicated in the original H-1B petition. The company can keep its H-1B employee on staff but not at the new worksite.
In the event of a pending previously filed amendment, subsequent amendments may be filed before approval to allow the worker to change job locations. However, if the worker’s status has expired while successive amended petitions are pending, the denial of any petition or amendment will result in the denial of all successive requests to amend or extend status.
Despite this guidance, compliance for H-1B employers is more complicated than ever and requires expert legal guidance. If you have questions about H-1B compliance or status issues, the attorneys at Minsky, McCormick and Hallagan P.C. are available to help.