Please read this important update to our previous article Amended H-1B Petition for Change of Work Location.
USCIS recently provided clear Guidance on the need to file amended H-1B petitions pursuant to Matter of Simeio Solutions, LLC, and provided a deadline of August 19, 2015, for filing amendments for H-1B employees who have previously changed worksite locations without filing H-1B amendments. After August 19th, if amended petitions have not been filed for affected H-1B employees, the H-1B employer and employee will be out of compliance with USCIS regulation and policy and subject to adverse action.
When an Amended Petition Must be Filed
An amended H-1B petition must be filed if an H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is certified and posted at the new location.
When an Amended Petition is NOT Required
- A move within an MSA or area of intended employment: If an H-1B employee is moving to a new job location within the same MSA or area of intended employment (e.g., within normal commuting distance of 50 miles), a new LCA is not required, and therefore, an amended H-1B petition is not required. However, the original LCA must still be posted in the new work location within the same MSA or area of intended employment.
- Short term placements: Under certain circumstances, an H-1B employee may be placed at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA.
- Non-worksite locations: If an H-1B employee is only going to a non-worksite location, an amended H-1B petition is not needed. A location is considered to be “non-worksite” if:
- The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- The H-1B employees spend little time at any one location; or
- The job is “peripatetic in nature,” such as situations where their primary job is 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 five 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).
Please contact ILG attorneys immediately if you have questions concerning possible moves to new worksites or filing amendments for your H-1B employees.