On April 9, 2015, the USCIS Administrative Appeals Office issued a precedent decision that held employers must file an amended H-1B petition when a new Labor Condition Application is required due to a change in an employee’s work location.
The decision states that when H-1B employees change their place of employment and it requires employers to certify a new Labor Condition Application (LCA), this qualifies as a ‘material change’ because it may affect the employee’s eligibility for H-1B status; and such a material change in employment conditions requires the petitioner to file an amended or new H-1B petition.
As a follow-up to this decision, USCIS has issued additional guidance about when and where to file the amended petition:
- Amended H-1B petitions must be filed if the employee changed, or is going to change, their place of employment to a worksite location outside the metropolitan statistical area (“MSA” ) covered by the existing H-1B petition;
- H-1B employees who had changed worksite locations, but not filed new H-1B petitions reflecting that change, at the time of the Simeio Solutions decision have until August 19, 2015 to file an amended petition reflecting their correct and current work location; and
- H-1B employees who changed worksite locations without filing an amended petition prior to the Simeio Solutions decision will not be the subject of adverse action, as long as they file an amended petition by August 19, 2015.
USCIS also clarified that once the amendment petition is filed, H-1B employees can immediately begin work at the new location, and are not required to await a final approval. If the amended petition is denied, but the original petition remains valid, the H-1B employee may return to the worksite covered by the original H-1B petition. If an amendment is still pending, another amended petition can be filed simultaneously to allow the employee to change work locations. However, each H-1B petition must separately meet the requirements for H-1B classification.
Employers do not need to file an amended petition if the following situations apply:
- Move within an MSA: If an H-1B employee moves to a new location within the same area of intended employment, and a new LCA is not required, then an amended H-1B petition is not required. Notice of the terms and conditions of the original LCA must be posted in the new work location at the time of the move, as required by 20 CFR 655.734.
- Short term placements: If an H-1B employee is at a new job location for up to 30 days (and in some cases up to 60 days), without requiring a new LCA pursuant to 20 CFR 655.735, then an amended H-1B petition is not required;
- Non-“worksite” locations: If an H-1B employee is only going to a non-worksite location, then an amended H-1B petition is not required. A location is considered non-worksite if H-1B employees visit the location for employee development activity (i.e. management training or staff seminars); or the H-1B employees spends a short amount of time in any one location, such as situations where the primary job is based in one location but employees occasionally travel for short periods; or if the job is ‘peripatetic in nature’ (e.g. a sales engineer who visits multiple customer sites every week).
In summary, the new requirements following the Simeio Solutions decision will require employers to pay close attention to the worksite location of their employees to ensure timely and proper H-1B amendment petitions are filed.