As reported in our previous blog Worksite Change Requires Amended H-1B Petition, the U.S. Citizenship and Immigration Services (USCIS) on May 21, 2015 rendered written guidance on when to file an amended H-1B petition based on its interpretation of the Simeio Solutions holding.
To recap, in Simeio Solutions, the AAO determined a geographic change in an H-1B employee’s worksite location constituted a material change and required both a new Labor Condition Application (LCA) and an amended Form I-129 or H-1B petition.
Under the facts in Simeio, the H-1B employee moved from the worksite identified on the original LCA and H-1B petition to two different worksites each located in different Metropolitan Statistical Areas (MSAs) than originally listed. The AAO emphasized the prevailing wage delineated in the employee beneficiary’s original filings were tied to the geographic area of employment. One reason changing the employee’s authorized place of employment effectuated a material change was because the beneficiary’s salary reflected in the original filings was based on a prevailing wage less than applicable to the new worksites. Accordingly, the AAO determined the H-1B petitioner was required to “immediately notify USCIS and file an amended or new H-1B petition, along with a corresponding LCA certified by DOL, with both documents indicating the relevant change.”
The May 21, 2015, USCIS Guidance expounds upon the Simeio Solutions decision and instructs when to file an amended H-1B petition after a change in worksite location.
Importantly, the Guidance applies retroactively and requires amended H-1B petitions for employees changing worksite locations before May 21 and also for relocations at or before the Simeio Solutions decision dated April 9, 2015. The USCIS allows 90 days from the May 21 Guidance, or until August19, 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.”
Under the Guidance, the H-1B employee does not need to wait for a final decision and can immediately begin work at the new location once the amended H-1B petition is filed. Moreover, if the amended petition is denied, 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 status at the original worksite. The petitioning employer and beneficiary employee may both be subject to adverse action if an amended H-1B petition is not filed for an H-1B employee who relocates to a worksite outside the MSA by August 19, 2015.
The USCIS Guidance also provides for instances when an amended H-1B petition is not required, that is: 1) when the geographic move is “within the same MSA or area of intended employment”; 2) when the geographic move is for short-term placements up to 30 days (or 60 days in particular situations); or, 3) when the employee is only traveling to certain types of non-worksite locations such as for seminars or on a casual short term basis where the primary job site remains intact.
Please feel free to contact the Sharma Law Offices regarding any issues raised by the content of this blog as it relates to your particular set of circumstances, or for assistance with other H-1B matters of concern.