Filing Amended H-1B Petition

Overview of Employer Requirement to File Amended H1B Petitions When H1B Employee is moved to a Worksite Location out of Metropolitan Statistical Area

H1B PetitionOn April 9, 2015, USCIS' Administrative Appeal Office issued a decision1 that required employers of H1B employees from that point forward to file amended H1B petitions when the H1B employee's worksite location is changed such that a new Labor Condition Application for Nonimmigrant Workers (LCA) is required. The employer of an H1B employee is required to file an amended LCA when an H1B employee is moved from the place of employment listed on his or her H1B petition to a worksite location outside of the metropolitan statistical area or “area of intended employment” listed on the H1B petition. Since failure to adhere to this new rule going forward will leave H1B employees out of status, it will be very important for H1B employees to work with their employers to ensure that all of the proper steps are taken in moving to a worksite location outside of the metropolitan statistical area listed on their H1B petition.

Rules for H1B Employees Changing Worksite Locations While an Amended H1B Petition is Pending

An H1B employee may work at a new worksite outside of the metropolitan statistical area or area of intended employment while their amended H1B petition is pending.

Rules for when H1B Employee can Move from Worksite Location and not Trigger the Requirement for an Amended H1B Petition

In the following situations, H1B employees may move from their current place of employment and not be subject to the new requirement for amended H1B petitions:

  • If an H1B employee is moving to a worksite location within the same metropolitan statistical area or area of intended employment, an amended H1B petition is not required. However, the employer must still post the original LCA at the new work location.
  • In certain circumstances, H1B employees may be placed at a new job location outside of their metropolitan statistical area for either 30 or 60 days without filing an amended H1B petition.2 3 However, both employer and employee should be careful to make sure that the short-term relocation falls outside of the new requirements for filing an LCA and amended H1B petition.
  • If an H1B employee is being sent to a non-worksite location, an amended H-1B petition is not required. Examples of non-worksite locations are locations for employee developmental activities, a site where the employee spends very little time, or if the employee only travels to the location occasionally, for short periods, and not more than five consecutive days for peripatetic worker or ten consecutive days for a worker who spends most of his or her time at the main worksite location.4

Rules to Know for Filing Amended H1B Petitions

  • If H1B employees were changing worksite locations such that an amended H1B petition is required at the time of the implementation of the new requirement, April 9, 2015, their employers have until August 19, 2015 to file amended H1B petitions.
  • For H1B employees who changed worksite locations before April 9, 2015, there will be no adverse consequences so long as their employers file amended H1B petitions by August 19, 2015.
  • If in either of the two above situations, an employer fails to file an amended H1B petition by August 19, 2015, they would be subject to adverse action from the USCIS and their H-1B employees would be considered out of status.
  • If an H1B employee was working at a new worksite while the amended H1B petition was pending, and the amended H1B petition was subsequently denied, the H1B employee may return to his or her original worksite, so long as he or she can still maintain valid nonimmigrant status there, with no adverse consequences for the employer or employee.
  • Employers may file amended H1B petitions while previously filed H1B petitions are still pending. Each amended H1B is considered on its own merits, independent of other pending petitions. If the H1B employee's status expires and any H1B petitions or petitions to extend status are denied, all of the pending and subsequent petitions will be denied. It is, therefore, important for employers of H1B workers to submit receipt notices received upon submitting prior petitions as proof that the petitions were submitted before an H1B worker's status expired.

_______________________

  1. Matter of Simeio Solutions, LLC
  2. 20 CFR 655.735
  3. The piece does not give any specifics on what the “circumstances” are here.
  4. 20 CFR 655.735