USCIS has issued its final guidance on when to file an amended or new H-1B petition when a change in work location occurs. As you may remember, on April 9, 2015, the Administrative Appeals Office (AAO) issued a decision in Matter of Simeio Solutions, LLC, requiring 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. USCIS had initially issued guidance on this issue, but thereafter allowed for comments leading to the final policy below.

In order to accommodate Employers who need to come into compliance with the AAO decision, USCIS will exercise its discretion as follows: 

1. Good news! This decision will not be retroactive meaning that USCIS will not pursue adverse action based on a failure to file an amended or new H-1B petition regarding a change in work location if that change occurred on or before April 9, 2015, which is the day the Simeio decision was issued.
2. If a change in work location occurs after April 9, 2015, but before August 19, 2015, the Employer must file an amended H-1B petition by January 15, 2016.
3. If a change in work location occurs on or after August 19, 2015, the Employer must file the H-1B amended or new petition before the employee begins working at the new location.

Note: If an Employer’s amended or new H-1B petition is denied, the original petition will still be considered valid as long as the employee can return to that place of employment.

An Employer must file an amended or new H-1B petition if: 

An Employer must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Further, once an Employer properly files the amended H-1B Petition, the H-1B employee can immediately begin to work at the new place of employment. This is good news, as the Employer will not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new location.

An Employer does NOT need to file an amended or new H-1B petition if: 

1. A move within an “area of intended employment”: If the H-1B employee is merely going to be moving to a new work location within the same area of intended employment, a new LCA is generally not required; therefore, the Employer will not need to file an amended or new H-1B petition. Note though that the original LCA must still be posted in the new work location.
2. Short-Term Placements: Under certain circumstances, placing an H-1B employee at a new work location for up to 30 days (some cases 60 days) as long as there is no material change in the terms and conditions of employment.
3. Non-worksite locations: A location is considered to be a “non-worksite” if:
   1. The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
   2. The H-1B employees spend little time at any one location; or
   3. The job is “peripatetic in nature,” such as situations where their job is primarily 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 5 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).”

If any other information is announced, I will be sure to post it here!