New Rules for Amending H-1B Petition with Work Location Change
The United States Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office issued a precedential decision in Matter of Simeio Solutions, LLC that now requires employers to file an amended H-1B petition for most worksite location changes. The decision clarifies USCIS’s position that when a change in the H-1B employee’s worksite requires employers to file a new Labor Condition Application (LCA), a “material change” in the terms and conditions of employment has occurred; thus, a new H-1B petition is required to be filed.
For employers who have H-1B workers who have changed worksites on or before April 9, 2015, the USCIS will generally not pursue new adverse actions solely for failure to file an amended petition regarding that move after July 21, 2015. However, the USCUS will preserve adverse actions already commenced or completed prior to July 21, 2015. The USCIS guidance also provides employers with a “safe harbor period” that allows an employer to file an amended or new petition for an employee who changed worksites on or before April 9, 2015, if the petition is filed by January 15, 2016. Additionally, employers with H-1B workers who change worksites after April 9, 2015, but before August 19, 2015, must file an amended or new petition by January 15, 2016, or both the employer and employee will be subject to adverse action. If the change in employment occurs after August 19, 2015 then the petitioner must file an amended or new petition before the employee begins working at the new location.
An employer must now file an amended H-1B petition if the 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) for the area of intended employment covered by the existing approved H-1B Petition. Once an employer has filed an amended H-1B petition, an H-1B worker can immediately begin working at the new location.
Employers are not required to file a new LCA or amended petition if the H-1B employee is moving to a new job location within the same MSA for the area of intended employment. However, employers must still post the original LCA in the new location.
Short Term Placements
An employer may place an H-1B employee at a new location for up to 30 days per calendar year. An employer may place or assign an H-1B employee to a new location for a period of time greater than 30 days but less than 60 days per calendar year if:
the H-1B employee continues to maintain an office or workstation at his/her permanent worksite;
the H-1B employee spends a substantial amount of time at the permanent worksite in a one-year period; and
the H-1B employee’s residence is located in the area of the permanent worksite and not the short-term worksite. No amended petition is required for such short term placements.
If an H-1B employee is going to a “non-worksite” location, employers do not need to file an amended H-1B petition. The term “non-worksite” means:
The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
The H-1B employees spend little time at any one location; or
The job is “peripatetic in nature,” such as situations where their primary job is at one location but workers 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 travels occasionally to other locations).”
If you have any questions about the new requirements to file an amended H-1B petition, please contact the author or other members of our Immigration Practice Group.