Employers Must File Amended H-1B Petition When Employee’s Worksite Changes, Effective Immediately
On April 9, the USCIS appellate level administrative office, the Administrative Appeal Office (AAO), issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers are required to file an amended H-1B petition if moving an employee to a worksite location that requires the employer to certify a new Labor Condition Application (LCA). Specifically, an employer must file an amended H-1B petition if the H-1B worker’s place of employment has or will change to a worksite outside of the metropolitan statistical area (MSA) or area of intended employment covered by the existing approved H-1B petition — regardless of whether a new LCA is already certified and posted at the new location. Moreover, employers are required to file an amended H-1B petition by August 19, 2015, for all employees who changed worksite locations before the case was decided. After the employer has filed the amended petition, the H-1B employee can immediately begin to work at the new location.
USCIS guidelines state that if the amended H-1B petition is denied, but the original petition is still valid, then the employee may return to the worksite covered by the original petition. The employer may also file another amended petition if a previously filed H-1B petition for the same worker is still pending. In such a case, the H-1B employee may begin work at the new location immediately upon the latest filing.
It should be noted that on June 9, USCIS Director Leon Rodriguez, speaking at the Council for Global Immigration, stated that the agency is considering applying the Matter of Simeio Solutions, LLC decision prospectively to provide relief to employers struggling to file all amended petitions by the August 19, 2015, deadline.
Employers, however, do not need to file an amended H-1B petition or LCA for employees whose new worksite is within the same MSA or area of intended employment. Employers are also not required to file an amended petition if the H-1B employee is moving to a non-worksite location — such as a location for employee developmental activity or business travel on a casual, short-term basis. Under some circumstances, an H-1B worker may be moved to a new worksite for up to 30 or 60 days temporarily, without obtaining a new LCA. In these cases, the employer does not need to file an amended H-1B petition.
Employers who have moved or are contemplating to move an employee to another worksite since the filing of the original H-1B are urged to contact their immigration lawyer to determine if an amended petition is required.