USCIS Provides Guidance on H-1B Worksite Location Changes

U.S. Citizenship and Immigration Services (“USCIS”) has released final guidance on a recent precedent decision clarifying whether amended or new petitions need be filed for H-1B employees who move job locations. The memo, which is effective immediately, includes information and deadlines for being compliant with Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

The memo clarifies that an employer does not need to submit a new labor condition application (“LCA”) nor file an amended H-1B petition if the employee’s new job location is within the “area of intended employment.” However, notice of filing postings are required at the new worksite location before the employee begins working, as per current regulations.

For changes of worksite location outside of the area of intended employment:

Except as provided below, petitioners 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 with USCIS, even if a new LCA is already certified by the Department of Labor and posted at the new work location.

USCIS indicated that it would generally not punish employers that do not file new H-1B petitions based on location changes that occurred on or before April 9, 2015. USCIS will, however, preserve adverse actions (i.e., revocations, denials, requests for evidence, etc.) already commenced or completed prior to July 21, 2015, and petitioners must comply accordingly.

The memo includes a “Safe Harbor” provision, whereby if a petitioner’s H-1B employee has moved or will move to a new place of employment not covered by an existing, approved H-1B petition after April 9, 2015 and prior to August 19, 2015, the petitioner must file an amended or new petition by January 15, 2016. Failure to file by the January 15, 2016 deadline will make the petitioner noncompliant with applicable regulations and subject to adverse action by USCIS. Similarly, the H-1B employee will not be maintaining status and may also be subject to adverse action.

If a petitioner’s H-1B employee moves to a new place of employment not covered by an existing, approved H-1B petition after August 19, 2015, the petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment.

In addition, certain short-term placements of up to 30 or 60 days as well as non-worksite location changes are exempt from the requirement of filing a new or amended H-1B petition.

USCIS further noted that once an amended or new H-1B petition is properly filed, the H-1B employee can immediately begin to work at the new place of employment. A final decision on the petition is not required for the H-1B employee to start work at the new place of employment.

The full memo can be found here: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.