AAO Says H-1B Amendment Required for Change in Work Location
UPDATE 05/27/2015: USCIS is now accepting comments on the guidance it issued on when to file an amended H-1B petition after the AAO decision, Simeio Solutions.
USCIS has instructed that all comments on the guidance be sent to firstname.lastname@example.org. For complete information on the comment process, visit the Feedback Opportunities section of www.uscis.gov. The final date for comments is Friday, June 26, 2015.
UPDATE 05/22/2015: USCIS has issued guidance on when to file an amended H-1B petition for a change in work location.
Filing Amended H-1B Petitions
- “If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.”
- “If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, 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, as noted above, you must now file an amended petition for these H-1B employees by August 19, 2015.”
- “If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.”
- “If your amended H-1B petition is denied, but the original petition is still valid your 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 your previously-filed amended H-1B petition is still pending, you 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.”
For more information, please visit:USCIS Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision.
The Administrative Appeals Office (AAO) issued a decision last week that will now require an amended H-1B petition to be filed if there is a change in work location that would require a new Labor Condition Application (LCA) to be filed.
The AAO states in pertinent part, “A change in the place in employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers be certified to the U.S. Department of Homeland Security with respect to the beneficiary may affect eligibility for H-1B status; it is therefore a material change…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.”
This decision sets a precedent contrary to the followed policy guidance issued by USCIS. Previously, USCIS policy allowed employers to merely file a new LCA if there was a change in work location without amending the H-1B petition. Once the LCA was certified, the H-1B employee could begin working at the new employment location.
If anyone has any questions regarding this decision, feel free to leave your questions below! Also, for a full reading of the case, please visit: http://www.justice.gov/eoir/vll/intdec/vol26/3832.pdf