United States Citizenship and Immigration Services (USCIS) Final Guidance on When to File an Amended
Following the USCIS Administrative Appeals Office’s (AAO) precedent decision in Matter of Simeio Solutions, LLC (“Simeio”), USCIS has issued final guidance articulating when an employer is required to file an amended or new H-1B petition based on a change in work location. Simeio found that a change in the H-1B worker’s place of employment to a geographic area requiring a new certified Labor Condition Application (LCA) constitutes a material change under the H-1B regulations and, thus, requires an amended or new H-1B petition. USCIS’ final guidance clarifies the following points:
Employer is NOT required to file an amended or new petition when:
H-1B worker is moving to a new job location within the same area of intended employment (i.e., the same Metropolitan Statistical Area). That is, if a new LCA is not required, then neither is an amended or new petition.
Caveat: The employer is still required to post the original certified LCA (or notice of the filing of an LCA) at the new work location within the same area of intended employment.
Example 1: H-1B worker’s job location is changed from 1 Water Street, New York, NY to 100 Fifth Avenue, New York, NY. The employer is required to post the original certified LCA at 100 Fifth Avenue, New York, NY for at least 10 consecutive days.
Example 2: H-1B worker’s job location is change from 1 Water Street, New York, NY to 100 Washington Street, Jersey City, New Jersey. In this instance, the employer is required to file an amended or new H-1B petition since the new work location is outside of the Metropolitan Statistical Area listed on the original certified LCA and H-1B petition.
Short-term placements: Where the short-term placement rules at 20 C.F.R. 655.735 are satisfied, the employer is not required to file an amended or new petition for an H-1B worker placed at a new worksite for 30 days (or up to 60 days where the H-1B worker is still based at the “home” worksite).
Non-worksite locations: An amended or new petition is not required where the H-1B worker will be at a “non-worksite” location. A location is considered a “non-worksite” if:
The H-1B worker is going to the location to participate in an employee developmental activity, such as a management conference or staff seminar;
The H-1B worker will spend little time at any one location; or
The job is “peripatetic in nature,” meaning that the job will be performed primarily in one location but may require occasional 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 the H-1B worker, or 10 consecutive workdays for any one visit by an H-1B worker who spends most work time at one location and travels occasionally to other locations).”
USCIS’ final guidance also clarified that employers may come into compliance with the Simeio decision as follows:
Changes in the place of employment requiring a new certified LCA Pre-Simeio (i.e., on or before April 9, 2015): USCIS will generally not pursue new adverse actions (e.g., denials or revocations) based solely on the failure to file an amended or new petition after July 21, 2015. If the employer wishes to file an amended or new petition for a change in the place of employment that occurred pre-Simeio (i.e., on or before April 9, 2015), any amended or new petitions filed by January 15, 2016 will be considered timely filed.
Caveat: USCIS will preserve adverse actions already commenced or completed prior to July 21, 2015 and will pursue new adverse actions if other violations have occurred.
Changes in the place of employment requiring a new certified LCA Post-Simeio (i.e., after April 9, 2015)
For changes in the place of employment occurring between April 9, 2015 and August 19, 2015: The employer must file an amended or new petition by January 15, 2016, otherwise the employer will be considered out of compliance with DHS regulations and subject to adverse action. Furthermore, the H-1B worker will not be maintaining nonimmigrant status and will also be subject to adverse action if an amended or new petition is not filed by January 15, 2016.
For changes in the place of employment occurring after August 19, 2015: The employer must file an amended or new petition before the H-1B worker begins working at the new location.
Pursuant to H-1B portability provisions, the H-1B worker may begin working at the new place of employment upon the employer’s filing of the amended or new petition. The employer does not have to wait for a final decision on the amended or new petition before the H-1B worker begins working at the new job location. USCIS' final guidance on the Simeio decision is available here.