June 04, 2015
Minsky, McCormick & Hallagan
Employers of H-1B workers are subject to extremely complex rules to stay in compliance with the law.
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.
If the H-1B employee’s worksite moves outside the “area of intended employment”, a new petition is needed.
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.
So, when is an amended H-1B petition NOT required?
According to this guidance, no amended petition is required in the following scenarios:
- New worksite stays within metropolitan statistical area (MSA) or “area of intended employment”: For an H-1B employee moving to a new job location within the same area indicated in the Labor Condition Application, an amended H-1B petition is not required. In that case, the only action the employer needs to take is to post the existing LCA at the new work location.
- Short term placement: For an H-1B employee who is only going to be moved to a new location (even outside of the MSA listed on the original H-1B) for a short period of time (30 or 60 days in certain circumstances), no amended H-1B petition or new LCA is required.
- Non-worksite activity: For an H-1B employee who is going to a non-worksite location, no amended H-1B petition is required. Activities that fall under this category include employee developmental activity such as management conferences and staff seminars. The guidance also discusses “peripatetic,” or roving workers, with a fixed job location who occasionally travel for short periods on a “casual, short-term basis” to other locations. In these situations, subject to the limitations found in the regulations, no amended H-1B petition is required.
Does it matter if the change in job location has already occurred?
In those cases, the guidance makes clear that an amended petition must be filed before August 19, 2015.
What if the employer fails to file an amendment?
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”.
What if the amended petition is denied?
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.
What if we already have a pending H-1B petition and need to change the employee’s job location immediately?
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.