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22
May

USCIS Issues Guidance on When to File Amended H-1B Petitions

In an April 9, 2015 precedent decision in the Matter of Simieo Solutions, LLC (26 I&N Dec. 542 (AAO 2015)), the Administrative Appeals Office (AAO) held that a change in the place of employment of an H-1B worker requires an amended petition because a worksite change is a material change.   However, it was not clear whether an amended H-1B should be filed prior to the move; whether the H-1B employer should move the employee only upon approval of the amended H-1B petition; and importantly, what would happen where an employer obtained a new Labor Condition Application (LCA) for the new worksite but filed no amended petition.

In its May 21, 2015 Guidance, USCIS has offered clear guidance to H-1B employers facing these circumstances.

Normal commuting distance determines if an H-1B amended petition is required

Key to determining if an amended petition is required rests on whether the worksite change is within the normal commuting distance.  Under the federal regulations, there is no rigid measure of distance for a normal commuting because it varies on several factors.  However, any worksite that is within a metropolitan statistical area (MSA) is normal commuting distance.

When is an H-1B amended petition required?

An H-1B employer must file an amended H-1B petition if the employer has changed or will change its employee’s place of employment to a location outside of the MSA.  Under the federal regulations, the employer was always required to obtain a certified LCA from the U.S. Department of Labor.  Following USCIS Guidance, an H-1B employer seeking to assign its H-1B employees to a new worksite outside of the MSA must also file an amended H-1B petition.

Must the employer wait for USCIS’ approval of its H-1B petition to have the employee begin work?

No.  USCIS states that the employer need not wait for the approval. The employer may have the H-1B employee begin work at the new worksite immediately upon filing the amended H-1B petition

Can the H-1B employer have the employee working at the new worksite beforefiling the amended H-1B petition?

No.  Though USCIS’ Guidance does not specifically answer this question, it can be reasonably inferred from its Guidance is that it expects an H-1B employer to file an amended petition before it places its employee at the new worksite.

WHEN IS AN AMENDED H-1B PETITION NOT REQUIRED?

–          Worksite changes within the same MSA

If the change in the place of employment of the H-1B employee is within the same MSA of the current worksite, an amended H-1B petition is not required.  A new LCA is also not required.  However, the H-1B employer must post the current LCA in the new work location.

–          Short term placements

Applicable federal regulations allow an H-1B employer to place an H-1B employee at a new job location for up to 30 days, and in some circumstances up to 60 days.  Because this is a short term placement, the employer does not have to obtain a new LCA.  However, a prerequisite for short term placements is that the H-1B employee must still be based at the original location.

–          Non-worksite locations

For H-1B purposes, a worksite is the “physical location where the work actually is performed” by the H-1B worker.  A non-worksite is one where:

–          The H-1B employee visits a location to participate in employee developmental activity such as conferences, seminars, and training (other than an on-the-job-training); or

–          The H-1B employee’s job may need frequent changes of location and spends little time at any one location.  This means that the job normally has a “home” worksite, and requires frequent travel that is recurring but not excessive, and the H-1B worker is not sent to the location as a “strikebreaker”.

File Amendment Petitions by August 19, 2015

In announcing this Guidance, USCIS has made clear that it will follow a 90-day rule in reviewing H-1B amendment petitions filed by employers.

Whether the H-1B employer changed its H-1B employee’s worksite already or is in the process of changing the worksite locations, USCIS advises that employers file amendment petitions by August 19, 2015.

For up to 90 days, USCIS will likely excuse an employer’s failure to file an amended petition for worksite changes which occurred before May 21, 2015.  Specifically, USCIS notes it will not take “adverse action” against such  employers or its employees, if the employer in “good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015.”

Worksite changes while an amendment petitions is pending

USCIS’ Guidance notes further that should an employer have its employee change worksites while an amended petition is still pending, the employer may still file another amended petition, which will then allow the H-1B Employee to change worksites immediately upon filing.

Conclusion

Employers that do not file an amended petition for changes in worksites for its H-1B employees now risk adverse action by USCIS.  Specifically, if the worksite has changed before the Matter of Simieo Solutions  decision, you must file an amended petition by August 19, 2015.

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