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USCIS Issues Draft Guidance on H-1B Amended Petitions

On May 27, 2015, USCIS issued a draft guidance memo on when employers of H-1B visas workers should file amended petitions.  The guidance attempts to implement the Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC decided April 9, 2015.  Specifically, the case and the guidance deal with when a change of employment location or other factors constitute a material change warranting the filing of a new Labor Condition Application (LCA) and thus an amended or new petition.  Simeio Solutions holds that:

  1. When H-1B employees change their place of employment to a work site location that requires employers to certify a new LCA, this change may affect the employee’s eligibility for H-1B status and is, therefore, a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
  2. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new work site.

The guidance memo allows for public comment until Friday, June 26, 2015.  Comments can be sent here.

Specifically, the guidance states that an amended H-1B petition MUST be filed if the employer’s H-1B employee changed or is going to change the place of employment to a work site location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location. However, some good news is that USCIS will permit the H-1B employee to immediately begin work at the new location after the amended petition has been filed: “You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.”

Amended petitions will NOT BE REQUIRED in these situations:

  • A move within an MSA: Where the H-1B employee moves to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, an amended H-1B petition is not required. However, employers must still post the original LCA in the new work location within the same MSA or area of intended employment. USCIS gives this example: An H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but the employer would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
  • Short term placements: Under certain circumstances, employers may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, an amended H-1B petition is not required.
  • Non-worksite locations: If the H-1B employee is only going to a non-worksite location, an amended H-1B petition is not required.  “Non-worksite” locations include:
    • Locations for developmental activity, such as management conferences and staff seminars;
    • Where H-1B workers spend little time at any one location; or
    • Where the job is “peripatetic in nature,” such as situations where their primary job is at one location but they 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).” See 20 CFR 655.715.

The guidance also covers several situations for employees who already changed locations, were changing locations at the time of Simeio Solutions or have pending amended petitions.

Already changed locations prior to the Simeio Solutions case: USCIS will not take adverse action against 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. But, an amended petition must now be filed for these H-1B employees by August 19, 2015. Failure to file will put the employees out of status and the employer out of compliance for H-1B purposes.

Were changing locations at the time of Simeio Solutions: Employers for this group of employees have 90 days from the date of the USCIS web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Like the group above, employers have until August 19, 2015 to file amended petitions for employees who changed locations on or before May 21, 2015.

Pending amended petitions: Employers should file another amended petition to allow H-1B employees to change work site locations immediately upon the latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay.  In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005) for similar instructions about portability petitions.

Denied Petitions: Where an amended petition is denied, but the original petition is still valid, the H-1B employee may return to the work site covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original work site.

Noting again that this guidance is in draft form for comment, until the guidance becomes final, employers should be aware that immigration practitioners are reporting site audits and revocation of petitions where USCIS could not find the beneficiary of the petition at the worksite listed in the initial petition. USCIS does send out fraud investigators to spot check on whether employees are indeed working at the sites on the filed LCAs and performing the duties represented in the H-1B petitions. Despite documentation of an LCA for the beneficiary’s new worksite, as well as additional documentation supporting the worksite change, some USCIS service centers have nevertheless revoked the H-1B petition stating that an amended petition must be filed because the new worksite was not shown on the original petition.  The American Immigration Lawyers Association believes that based on law, regulations, liaison meeting minutes, and prior correspondence, no new petition is or should be required.  However, until these issues are clarified as final policy, whether a new or amended petition is needed for a change in location, employers should err on the side of caution and file a new LCA and amended petition prior to the geographic relocation of the employee.