Reminder: H1B Amendment Typically Required Prior to Change in Work Location19 Dec 2022
Prior to there being a material change in an H1B employee’s working conditions, the employer is ordinarily required to file an H1B amendment. It is not always clear whether a particular change is “material,” but, in the context of a change in an H1B employee’s work location, the U.S. Citizenship and Immigration Services (USCIS) has provided relatively clear guidance on when an amendment is required.
Amendment Required if Moving Outside of Area of Intended Employment
On April 9, 2015, the U.S. Administrative Appeals Office (AAO) issued the precedent decision, Matter of Simeio Solutions, LLC, which held that that a change in work location generally is considered a material change. Many employers were not pleased with this AAO interpretation, especially those in consulting, where H1B workers routinely are moved from one work location to the next. But, at the very least, this AAO holding, and the corresponding policy memorandum the USCIS released shortly after the Matter of Simeio Soutions decision was issued, provides relatively clear guidance on when an H1B amendment is required based on a change in work location.
The general rule now is, if an H1B worker will be moved to a work location that is not within the same area of intended employment – that is, within the same metropolitan statistical area (MSA) or within reasonable commuting distance – the employer must first file an H1B amendment. As with any H1B petition, prior to its filing, the employer must first obtain a certified labor condition application (LCA) from the U.S. Department of Labor (DOL) for the intended work location.
Exceptions to the General Rule
As with nearly all rules in U.S. immigration law, there are exceptions to the general requirement that an H1B amendment must be filed before moving to a new work location. The following is a non-exhaustive list of some of the exceptions:
- Short-term placements: In certain circumstances, if the employer places the H1B worker at a new worksite location outside of the MSA for a period of less than 30 days, and in some cases up to 60 days, an H1B amendment may not be required.
- Non-worksite locations: Certain locations where the employee may perform work are not considered to be new “worksites” and therefore do not require the filing of an H1B amendment. In the memo, the USCIS lists three situations where a location is considered a non-worksite:
- The H1B worker is traveling to a location to participate in employee development, such as attending a management conference or staff seminar.
- The H1B employee spends little time at any one location.
- The job is “peripatetic in nature,” such as situations where the job is primarily at one location but the H1B worker occasionally travels 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 ten consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”
It is important to understand that, even if there is no change in the work location, an H1B amendment may still be required. For example, if there is a material change in the job duties, which often occurs when working on a new project, an H1B amendment typically still would be needed, even if the work location remains unchanged.
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