As previously reported, on April 9, 2015, the Administrative Appeals Office (AAO), which is responsible for the review of certain decisions rendered by U.S. Citizenship and Immigration Services (USCIS), issued a published decision in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), holding that:
- A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application (LCA) to be certified with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of the immigration regulations.
- 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.
On May 22, 2015, USCIS posted draft guidance on when to file an amended H-1B petition after the decision in Matter of Simeio Solutions.
In the draft guidance, USCIS confirms that an amended petition must be filed if the H-1B employee has moved or is going to move to a work location outside of the Metropolitan Statistical Area (MSA), even if a new LCA has already been certified and posted at the new location. The draft guidance also clarifies that the employee can immediately begin work at the new location, once the amended petition filing has been made. The employer does not have to wait for a decision on the amended petition before the employee may start work at the new location.
An amended petition is not always required whenever an employee moves work locations. USCIS provides some examples of when an amended petition is not required:
- Move within MSA: When the new location is within the same MSA or area of intended employment, the employer must only post the original LCA in the new work location.
- Short-term placements: Under certain circumstances, an employer may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days, without the need to obtain a new LCA. In such situations, an amended petition is not required.
- Non-worksite locations: If the new location will not be an actual worksite, an amended petition is not required. A location may be considered a non-worksite if:
- The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- The H-1B employees spend little time at any one location; or
- 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).
USCIS provides the following instructions and timeline relating to the implementation of the draft guidance:
- If H-1B employees were changing worksite locations at the time of the Matter of Simeio Solutions decision, the employer has 90 days from May 21, 2015, or until August 19, 2015, to file amended petitions for H-1B employees who moved to a work location outside of the MSA in indicated in the initial petition.
- If H-1B workers changed their worksite location before the Matter of Simeio Solutions decision, USCIS will not take adverse action against the employer or 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. However, the employer must now file an amended petition for these H-1B employees by August 19, 2015. If the employer does not file an amended petition for these employees by August 19, 2015, it will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
- If the amended H-1B petition is denied, but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
If the previously-filed amended H-1B petition is still pending, the employer may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your 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.