Earlier this month we sent out a client alert concerning the Simeio Solutions decision issued by the immigration service’s Administrative Appeals Office. In essence, the decision held that employers must file an amended H-1B petition whenever a new Labor Condition Application is required due to a change in the H-1B workers location, as a “material change” has occurred.
In guidance recently issued by the immigration service (USCIS), it is confirmed that an amended H-1B petition must be filed if an H-1B employee has changed or is going to change their place of employment to a worksite location outside the metropolitan statistical area (MSA) or “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. The H-1B employee is, however, able to start work at the new location as soon as the amended petition is filed – they don’t have to wait for the final decision on the amended H-1B petition.
USCIS goes on to provide guidance as to when an amended H-1B petition is NOT required:
- Where the H-1B employee is moving to a new worksite location within the same MSA or area of intended employment, a new LCA is not required. Therefore, an amended petition is not required either. Note, however, that the original LCA must still be posted in the new work location.
- Under certain circumstances, an H-1B employee may be placed at a new job location for up to 30 days, and under more limited circumstances for up to 60 days, without obtaining a new LCA. In these situations, an amended H-1B petition is not required.
- If the H-1B employee is only going to a non-worksite location, an amended H-1B petition is not required. A “non-worksite” location is specifically and very narrowly defined in the guidance, but essentially is where the employee will be at the location very temporarily and for a limited, specific purpose.
Finally, the guidance provides that employers who have had H-1B employees change worksite locations during or prior to the issuance of the Simeio Solutions decision, and only filed a new LCA, have until August 19, 2015 to file an amended petition. If amended petitions are not filed by then, the employer will be considered out of compliance with USCIS regulation and policy and be subject to adverse action. Also, the H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
To learn more, or if you have any questions about the issues discussed in this alert, please contact your immigration counsel at Smith, Gambrell & Russell, LLP.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.