USCIS Issues Guidance on Changes in H-1B Work Locations, Sets August 19 Deadline for Pre-May 21 Relocations

 

USCIS has issued new guidance on changes in H-1B work locations in the wake of Matter of Simeio, an April 9 precedent decision of the agency’s Administrative Appeals Office (AAO). Employers will have until August 19 to file amended petitions for H-1B employees who have already moved to new worksites not specified in an H-1B petition and labor condition application (LCA) on file for the employee. For any such relocations occurring after May 21, employers must obtain a new LCA and file an amended petition before the move takes place.
 

 

When Does a Location Change Require an Amended Petition?

An amended H-1B petition is required whenever there is a material change in an H-1B worker’s employment. USCIS regulations do not define a material change, but in Matter of Simeio, AAO ruled that a material change occurs when an H-1B employee moves to a new location outside of the geographic area of an LCA that was filed with the employee’s H-1B petition.

An amendment is not required when the H-1B employee moves to a worksite within the geographic area of an LCA already on file with USCIS. This includes a move to a new end-client worksite or a new petitioner worksite, as long as there are no material changes to the H-1B employment. Similarly, no amendment is required for short-term placements or time spent at non-work locations, as those terms are defined by the Department of Labor.

August 19 Deadline for Location Changes That Occurred Before May 21

By August 19, employers must file petition amendments for H-1B relocations requiring a new LCA that took place before May 21, 2015. This includes moves that occurred before the AAO decision was handed down. The amendment must cover the H-1B employee’s current location, but USCIS has not specified whether employers must notify the agency of relocations that took place before the most recent change.

H-1B Location Changes Taking Place After May 21

For moves to a new geographic location after May 21, the employer must obtain a new LCA from the Department of Labor and file an amended H-1B petition before relocating the H-1B employee. The H-1B can start work at the new location as soon as the amended petition is properly submitted to USCIS. It is not necessary to wait for a USCIS approval.

Employers can move an H-1B employee to a further location while an amendment for a prior location is still pending, as long as another new amendment with a new LCA is filed before the next move. If an amendment is denied, USCIS indicates that an H-1B can return to a location covered by a prior H-1B petition that remains valid. However, amendment denials raise complex status and compliance issues for employers and foreign nationals. In the event of such a denial, employers should consult with their Fragomen professionals before any further relocations or returns to prior worksites.

What This Means for Employers

USCIS’s new guidance clarifies some issues related to H-1B location changes in the wake of the Simeio decision. But the requirement to file amended petitions for location changes that have already occurred will pose significant financial and administrative burdens on employers that relied in good faith on longstanding prior agency guidance. Employers in fields requiring frequent employee relocations – such as the consulting industry – are especially affected.

Going forward, employers must carefully track H-1B employees’ planned moves and make sure to get a new LCA and file an amended petition before they arrive at a new location.

Fragomen continues to work with its advocacy partners to seek further clarification and convey the impact of the Simeio decision and guidance on U.S. businesses. If you have any questions about H-1B location changes, please contact your designated Fragomen professional.