Filing a New or Amended H-1B Petition after a Change in Job Location
On July 21, 2015, USCIS issued final guidance on when to file a new or amended H-1B petition based on the ruling in the Matter of Simeio Solutions, LLC.1 The guidance provides the following directives:
- An amended H-1B must be filed with USCIS when a new Labor Condition Application (LCA) is required if the new and/or additional place of employment is in a different Metropolitan Statistical Area (MSA) or “area of intended employment” (as defined at 20 CFR 655.715). The employee can work at the new site as soon as the petition is filed.
- An employer does not need to file an amended H-1B if the employee is moving to a new job location within the same area of intended employment or MSA. However, the employer must post the previously certified LCA at the new location.
- The exceptions for a short term placement (30 or fewer days) or short term travel to non-worksite locations still apply.
- USCIS generally will not pursue adverse action (e.g., denials or revocations) against an employer who fails to file for changes in work location on or before April 9, 2015.
- An employer will be provided “safe harbor” from adverse action for a change in the place of employment that occurred on or before the date of the Simeio decision (April 9 2015) by filing a new or amended petition by January 15, 2016. USCIS will consider such filings timely for purposes of compliance with the regulation.
- If an employer fails to file by January 15, 2016 for an H-1B employee who moved to a new place of employment after April 9, 2015 but before August 19, 2015, the petitioner will be out of compliance with Department of Homeland Security (DHS) regulations and the USCIS’ interpretation of the law, and subject to adverse action. Further, the employee will be considered out of status and also subject to adverse action.
- If the change in the place of employment occurs on or after August 19, 2015, the employer must follow the new guidance and file an amended or new petition before the employee begins working at the new location.
- If the Amended Petition is denied but the original petition remains valid, the employee can return to the original place of employment as long as the employee maintains valid nonimmigrant status. How the employee must return is not spelled out.
- If a petition to amend or extend an employee’s status is pending and an employer also wishes to change the employee’s work location, the employer immediately may file a petition to also amend the work location. Posted August 7, 2015