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Final H-1B Material Change Memo Issued by USCIS

USCIS issued its final guidance memo on when employers must file amended or new H-1B petitions for employee changes in job location or other material changes.  The memo implements the April 9, 2015 AAO Decision in Matter of Simeio Solutions, LLC.  In a prior blog post, we discussed the case and USCIS’ proposed guidance memo that was posted for public comment.  The final memo issued on July 21, 2015 addresses a number of issues and scenarios about when an H-1B employer must file a new or amended H-1B petition.

As a recap, Matter of Simeio Solutions held that:

1. When an employee’s place of employment changes to a geographic area requiring a corresponding Labor Condition Application (LCA), it may affect the H-1B’s eligibility for status, and, thus, it is a “material change” in the employee’s work situation requiring an amended or new I-129 petition.

2. When there is a material change in the terms and conditions of employment, an amended or new H-1B must be filed with a corresponding LCA.

The final guidance memo states that:

1. The employer must file a new or amended I-129 petition with U.S. Citizenship and Immigration Services (USCIS) whenever a new LCA is required, and even if a new LCA is already certified by the U.S. Department of Labor (USDOL) that has been posted at the new work location.  But, as a matter of practicality for employers, USCIS will allow the H-1B employee to start working at the new location once the petitioner properly files the new or amended H-1B petition if all other requirements are met. Thus, the employee need not wait for the petition to be approved before starting work at the new location, so long as the employee starts after filing the petition.

2. When new/amended petitions are NOT required:

a.  When the employee is moving to a location within the same “area of intended employment” and there are no changes in the terms or conditions of employment, a new or amended petition is NOT required.  This is because generally a new LCA is not required either.  The same area of intended employment is governed by the prevailing geographic wage area, such as the Seattle-Bellevue metropolitan area. See INA Sec. 212(h)(4); 20 CFR section 655.734.

However, the employer still needs to post the original LCA at the new work location whether or not just the one employee moved or the entire office moved within the same geographic area covered by the LCA.

b. If the employee will be at a new worksite for “short term placement” up to 30 days and in some cases up to 60 days (where the employee is still based at the “home work site”), then a new LCA is not required, and thus a new petition is not required either so long as there are no material changes in the terms and conditions of the employment.  (See references below.)

c. Where employees are going to a “non-worksite,” neither a new LCA nor new petition is required. Non-worksites include places such as sites for employee training, conferences, seminars, or where very little time is spent at any one location, or for “peripatetic” work, (i.e., the job is at a primary location but there is occasional short travel to other locations) (e.g., not more than 5 consecutive work days per visit or 10 consecutive work days for any one visit where the worker spends most work time at one location and travels occasionally to other locations.) 20 CFR section 655.735.

3. Procedural Issues – Who Must File When

a. Pre-Simeio Solutions: For employees who move to new work sites covered by Matter of Simeio Solutions on or before April 9, 2015 (the date of the decision), USCIS will not pursue adverse actions (denials or revocations of petitions) against employers who did not file new/amended petitions after July 21, 2015.  But, USCIS will continue with pending adverse actions or instigate new ones if they determine other violations.

b. Safe Harbor: Employers who did move their employees on or before April 9, 2015 and who did not previously file new or amended petitions will be entitled to a “safe harbor” if they file new or amended petitions by January 16, 2016. In other words, employers may elect to file new oramended petitions for employee moves in the period mentioned in #3a above.

c. Post-Simeio Solutions: H-1B employees who move after April 9, 2015 and before August 19, 2015 will be out of status if their employers do not file new or amended petitions by January 15, 2016. In other words, USCIS is giving employers some time to catch up with their filings if their employees moved since April 9, 2015 to covered worksite locations in this period.

d. Post Memo: For all other H-1B employees who change job locations on or after August 19, 2015,  that under Simeio Solutions and this new memo would require the filing of a LCA and/or new H-1B petition, the employer must file a new or amended petition BEFORE the employee begins working at the new location. As noted above, the employee need not wait for the final decision.

The new USCIS memo has a little chart that can be helpful in determining when new or amended petitions must be filed.

4. Related issues:

a.  Where the amended or new H-1B petition is denied, the employee can return to the original place of employment covered by the prior petition if it is still valid and covering the job and conditions mentioned in that petition.

b.  Additional new or amended petitions can be filed while other petitions are pending, but each and every one must be separately approvable.  If status expires while a petition is pending, subsequent requests to amend or extend status could be denied. (See resources below.)

c.  Where the employee needs to travel while an amended or new H-1B petition is pending, there is other guidance on what the employee’s status may be. (See below).

Helpful resources for employers concerning all of the above include:

  • Sections 101(a)(15)(H)(i)(b) and 214(a)(1), (c)(1) of the Immigration and Nationality Act (INA), Title 8, United States Code, sections 1101(a)(15)(H)(i)(b) and 1184(a)(1), (c)(1).
  • Title 8 Code of Federal Regulations (CFR), section 214.2(h)
  • Title 20 Code of Federal Regulations (CFR) 655.734-735, 715
  • Matter of Simeio Solutions, LLC 26 I&N Dec. 542 (AAO 2015)
  • Memorandum from Michael Aytes, Acting Director of Domestic Operations (December 27, 2005), (regarding portability petitions)
  • Memorandum from Michael D. Cronin, Executive Associate Commissioner (June 19, 2001) (regarding travel while petitions are pending).

The entire matter of employees moving around can be very problematic for larger employers as it is a headache to keep track of every employee’s move for H-1B purposes, let alone other immigration, labor and employment law reasons.  However, given the audit components of the H-1B rules and the scrutiny being given to the program by Congress, it is imperative that employers make sure that HR and division managers have a grasp on and a system to keep track of moves and appropriate timely analysis of whether a new or amended petition is required. A knowledgeable immigration lawyer can help employers set up a system and evaluate LCA and petition requirements for each H-1B worker.