USCIS issued guidance today clarifying employers' obligations to file amended H-1B petitions when an H-1B employee changes work locations. The web alert issued by USCIS also provides clarity on the retroactive application of the new guidance.
The guidance, which follows the April 9, 2015 Administrative Appeal Office (AAO) decision Matter of Simeio Solutions, LLC, seeks to clarify when employers are required to file amended petitions in the wake of the decision.
The guidance states that employers must file amended H-1B petitions any time an employee is moved to a work location outside the metropolitan statistical area (MSA) or “area of intended employment” covered by the existing approved H-1B petition. The guidance confirms that filing a new LCA is no longer sufficient in these circumstances.
The Service confirmed that once the amended petition is filed, however, the employee is permitted to immediately begin work at the new location and would not be required to wait for a final decision from USCIS prior to the move.
The guidance also identifies three (3) specific circumstances where an H-1B amendment would not be required:
- If the H-1B employee is moving to a new work location within the same MSA or “area of intended employment” covered by the existing approved H-1B petition. Note that employers are still required to post the original, certified LCA from the initial petition at the new work location;
- If the change in work location will constitute a short term placement; or
- If the location qualifies as a "non-worksite location" which is further defined in the guidance.
The Service has also provided clarification on employer's obligations for worksite changes which took place prior to or concurrent with the Simeio Solutions decision.
For moves that took place at the same time as the Simeio Solutions decision, employers have 90 days from today's USCIS web alert (by August 19, 2015) to file amended petitions for H-1B employees affected by the decision.
For moves that took place prior to the Simeio Solutions decision, USCIS has indicated that it will not take adverse action on employers who relied in good faith on the prior agency guidance. However, these employers are also required to file an amended petition by August 19, 2015 in order to be in compliance with the new rule.
Employers who fail to timely file an amendment within the 90 day deadline will be considered out of compliance with USCIS regulation and policy and subject to adverse action. USCIS goes on to say that the affected H-1B employees would also be subject to adverse action in these cases for failure to maintain lawful status.
USCIS notes that if an amended H-1B petition is denied, the employee can return to the original worksite provided the prior H-1B petition remains valid.
Finally, if a previously-filed amended H-1B petition is still pending, employers may still file another amended petition for a subsequent worksite move.
UPDATE: USCIS issued final guidance on when H-1B amendments are required on July 21, 2015, for more information please click here