In the past, USCIS had unclear guidelines in regards to an employee’s change of work site as it related to H-1B amendments. USCIS had no strict definition of what constituted a material change and employees were usually allowed to relocate without amending the petition. In general, petitioners did not necessarily have to file an amendment, as long as there was a certified LCA for the new location. The recent precedent decision from the Administrative Appeals Office (AAO), In the Matter of Simeio Solutions, and USCIS’ subsequent guidance seeks to clarify these unclear past guidelines and set forth more definitive steps that must be taken to move an H1B employee to a new location.
In the Matter of Simeio Solutions sets forth binding policy regarding H-1B amendments. This precedent decision has created a sequential set of steps that must be complied with regarding H-1B work site changes in order to avoid revocation of the H-1B petition.
First, for an H-1B employer to change locations, the petitioner must apply for an LCA. Next, once the LCA is certified, the petitioner must file an H-1B petition amendment. Only at this point may the H-1B employee begin working at the new location. That is, only after an amendment has been filed may the H-1B employee chance locations. While the amendment petition does not have to be approved before the work site change occurs, it must be pending for the H-1B employer to be working at a different location.
The change in policy set forth by Matter of Simeio Solutions is effective immediately. This decision mandates that Petitioners must file an amended H-1B petition, along with a certified LCA for the new location, before placing the employee at the new site.
If your H-1B employee was changing worksite locations at the time of the Simeio decision, you have 90 days from May 21, 2015 to file an amended petition. This means that amendments must be filed August 19, 2015.
If an employer’s H-1B employee changed worksite location before the Simeio decision, USCIS will not take adverse action against you or the employee, as long as the employer relied in good faith, on prior non-binding agency correspondence, and did not file an amended petition due to a change of worksite before May 21, 2015. However, the employer must still now amend the petition by August 19, 2015. If an employer does not comply by August 19, 2015, the H-1B employee will not be maintaining their nonimmigrant status and the petition will be subject to adverse action.
If the amended H-1B is denied, but the original petition is still valid, the employee may return to the original petition’s worksite as long as they are able to maintain valid nonimmigrant status. This clarifies prior uncertainties regarding whether an H-1B employee is out of status if an amendment is denied. As long as the employee can return working at the original worksite (for example, if the project was in house with the petitioner), then the employee is not out of status and can resume working and refile another amendment before changing worksites.
If a previously-filed amended H-1B petition is still pending, an employer may still file another successive amended petition to allow their employee to change worksite locations immediately upon the latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. If Beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.
USCIS is expected to make 30,000 administrative H-1B and L-1 site visits this year, which means failure to comply with USCIS’ policy will likely result in an adverse action on your petition.
Please note that there are certain scenarios when a Petitioner does NOT have to file an amended petition. These scenarios are outlined below:
A Move within the Metropolitan Statistical Area (MSA):
In this scenario, a new LCA is not required; therefore you do NOT need to file an amendment. However, you still must post the original LCA in the new work location within the same MSA or intended area of work.
Example from USCIS: an H-1B employee moving to a new job location within the New York City MSA would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work site location. This is required whether an entire office moved from one location to another within New York City or if just one H-1B employee moves from one client site to another within New York City.
Short term placements:
You may place an H-1B employee at a new job location for up to 30 days and in some cases up to 60 days, without obtaining a new LCA, and therefore do not need to amend the petition.
Short-term placement may not exceed 30 days within a 1 year period. A 1 year period is calendar year (Jan 1-Dec. 31) or the employer’s fiscal year, whichever the employer chooses.
The short term placement may exceed 30 days, but no more than 60 days if employer can show: (1) the H-1B employee continues to maintain an office or work station at her permanent worksite (i.e: dedicated work state/telephone line at the original worksite); (2) the H-1B employee spends a substantial amount of time at the permanent worksite in a 1 year period; and (3) the H-1B employee’s U.S. residence is located in the area of the permanent worksite and NOT in the area of the short term worksite.
There are certain conditions that an employer must comply with if they assign or place an employee for short-term. First, for every day the employee is placed or assigned outside of the LCA listed employment location, the employer must: (1) Continue to pay the employee the required wage; (2) Pay the employee’s actual cost of lodging; and (3) Pay the employee’s actual cost of travel, meals, and incidental or miscellaneous expenses (for both workdays and non-workdays).
If the H-1B employee is only going to a “non-worksite” location, the employer does not need to file an amended H-1B petition.
A location is a “non-worksite” if: (1) the employee is going to the location to participate in employee developmental activity (management conference and staff seminars); (2) the employee spends little time at the location; or (3) the job is “peripatetic” in nature: the normal duties of the worker (rather than the nature of the business) is to travel. However, this “travel” cannot be excessive. If the worker is peripatetic/normal work duties entail travel: Cannot exceed 5 consecutive days for one visit at the location. If the worker is not peripatetic/does not normally travel: Cannot exceed 10 consecutive days for one visit at the location.
Examples of “non-worksite” locations based on an employee’s normal job functions:
A computer engineer sent out to customer locations to “troubleshoot” complaints regarding software malfunctions; a sales representative making calls on prospective customers or established customers within a “home office” sales territory; a manager monitoring the performance of out-stationed employees; an auditor providing advice or conducting reviews at customer facilities; a physical therapist providing services to patients in their homes within an area of employment; an individual making a court appearance; an individual lunching with a customer representative at a restaurant; or an individual conducting research at a library.