Reminder: Jan 15 Deadline to File H1B Amendments for Work Location Changes28 Dec 2015
As previously reported, the U.S. Citizenship and Immigration Services (USCIS) issued a final guidance memorandum on July 21, 2015 that details the requirements for filing an amended H1B petition based on an H1B employee being moved to a different worksite location. This memo implements the decision of the USCIS Administrative Appeals Office (AAO) in Matter of Simeio Solutions. Employers are reminded that, for a worksite change made prior to August 19, 2015, the deadline to file an H1B amendment is January 15, 2016.
Background: Amendments for 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 interprets the meaning of material change, as it pertains to a change to a worksite location. Based upon this case, and the memo that followed, 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.
No Retroactivity for Relocations On or Before April 9, 2015
Under the USCIS guidance memo, if an H1B worker relocated on or before April 9, 2015 (the date of the Simeio Solutions decision), 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.
Relocation Between April 9 and August 19, 2015
If an H1B worker was relocated after April 9, but before August 19, 2015, an H1B amendment must be filed by January 15, 2016. This assumes that the new worksite is not within the geographic area(s) covered by the LCA filed with the existing H1B petition.
H1B Amendment for Relocations On or After August 19, 2015
As of 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.” Employers who may have omitted this step should seek qualified immigration advice promptly.
Change in Work Location Authorized Upon H1B Filing
One important detail in the final guidance memo 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.
Change in Client or Project May Also Require H1B Amendment
While the Simeio Solutions decision and corresponding memo address the requirement for filing an H1B amendment based on a change in the worksite location, there are a many other situations in which an amendment would be necessary. For instance, if the foreign national worker is promoted to a different position, this may be considered a material change and, thus, call for the filing of an H1B amendment.
Potential Consequences of Failing to Timely File Amendment
If an H1B petitioning employer does not file the required H1B amendment by the January 15, 2016 deadline, the USCIS could issue a notice of intent to revoke (NOIR) on the H1B petition. A failure to file an amendment could also be viewed as a status violation for the H1B worker. This, in turn, could create problems for the worker and/or the petitioning employer during a subsequent request to extend or change status.
Companies with H1B workers, who were relocated between April 9 and August 19, 2015, should ensure that the necessary H1B amendments are filed by the looming January 15, 2016 deadline. Employers should carefully audit their records to make sure they have identified all such cases. The Murthy Law Firm stands ready to provide representation in connection with H1B amendment filings and to guide employers with amendment-related questions.
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