Final USCIS Guidance on H1B Amendments for Worksite Changes02 Aug 2015
The U.S. Citizenship and Immigration Services (USCIS) has issued final guidance specifying the requirements for filing amended H1B petitions based on changes in worksite location. This guidance makes some concessions to employers of H1B workers, in response to concerns raised following the May 2015 issuance of initial draft guidance on this topic. The final guidance includes the timelines for filing H1B amendments needed to comply with the recent decision in Matter of Simeio Solutions.
Background: Amendment Requirement and Relocation of H1B Workers
Under longstanding regulations, it is necessary to amend an H1B petition whenever there is a material change in the terms and conditions of employment. The Simeio Solutions decision provides an interpretation of the meaning of “material change” as it pertains to a change to a worksite location. Based on the holding in this case, an employer must file an H1B amendment in almost all cases in which the worker is moved to a location not covered by the labor condition application (LCA) submitted with the H1B petition. More details on this case are available in the MurthyDotCom NewsBrief, H1B Amendment Required for Most Worksite Changes (17.Apr.2015).
Relocation on or Before April 9, 2015: No Retroactive Application
Per the final guidance memo, if an H1B worker relocated on or before April 9, 2015, which is the date the Simeio Solutions case was decided, the employer may choose to file an H1B amendment, but generally is not required to do so based solely on the location change. Rather, the memo explains that the USCIS will not penalize employers in such cases for failing to file H1B amendments. Employers that elect to file H1B amendments in these cases, however, should do so within the six-month grace period, explained below.
Note, however, that these protections only apply to “… new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition …” If an adverse action was initiated prior to the July 21, 2015 release of this memo, the USCIS may continue to pursue the matter, even if the case involves an H1B relocation that occurred prior to April 10th.
Relocation Between April 9 and August 19, 2015
If an H1B worker was or will be relocated after April 9, but before August 19, 2015, an H1B amendment must be filed by January 15, 2016. This, of course, is assuming the new worksite is not covered by the LCA that was filed with the existing H1B petition.
If a petitioner does not file a required H1B amendment by the January 15th deadline, this could lead the USCIS to issue a notice of intent to revoke (NOIR). Further, even if no NOIR is issued, a failure to file an amendment could be viewed as a status violation for the H1B worker. This, in turn, could create problems for the worker, such as when applying for an extension of status or change of employer.
Relocation On or After August 19, 2015
Beginning August 19, 2015, for any “… change in the place of employment (not covered by an existing, approved H1B petition) … the petitioner must file an amended or new petition before the employee begins working at the new location.”
Change in Work Location Authorized Upon H1B Filing
One detail that remains unchanged from the draft guidance is that H1B workers generally may begin working at a new geographic location immediately upon filing the amended H1B petition. This facilitates needed changes in worksite locations and avoids delays due to the sometimes-lengthy USCIS adjudication process.
This USCIS final guidance provides a much-needed safe harbor period, which should allow H1B employers sufficient time to adjust to the new requirements created by the Simeio Solutions decision. The Murthy Law Firm stands ready to help and guide employers with the filing of H1B amendments.
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