By Milen Saev*

On July 21, 2015, USCIS issued its final guidance[i] on the implementation of the Administrative Appeal Office (AAO)’s precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (2015).[ii] The AAO held that employers are required to file amended H-1B petitions when H-1B workers move to jobsites that were not listed on the original H-1B petition and when such a move represents a material change in the terms of employment.

Is this a new USCIS policy?

Federal regulations require an amended H-1B petition must be filed when there are “material changes” in the H-1B worker’s terms and conditions of employment. Until the Simeio Solutions decision, the question of whether a job location change requires filing an amended H-1B petition did not have a definitive answer. This was largely due to the different sets of regulations governing Labor Condition Applications (LCAs) and H-1B petitions, as well as prior conflicting correspondence and liaison meeting discussions with USCIS. The AAO decision is a precedent decision and it is binding on government adjudicators.

What is the new USCIS guidance on H-1B job site changes?

The relevant points of Simeio Solutions decision are as follows:

·      Changing the H-1B worker’s place of employment to a worksite that requires employers to submit a new LCA may affect the worker’s eligibility for H-1B status and is considered a material change in the terms and conditions of employment;

·      Material changes in the H-1B context require filing an amended H-1B petition along with the respective LCA.

Employers must file amended H-1B petitions if the new worksite location is outside of the Metropolitan Statistical Area (MSA) or the area of intended employment (area within normal commuting distance of the employment location) listed on the original approved H-1B petition. An amended petition must be filed regardless of whether a new LCA has already been approved and posted at the new worksite.

Are there exceptions to this requirement?

Not every worksite location change requires filing an amended H-1B petition as long as the job location change meets any of the following conditions:

Same area of intended employment: If the new worksite is located within the same MSA or area of intended employment, there is no need to file an amended H-1B petition. The employer would still be required to post the existing LCA at the new location.

Short term move: There is no need to file an amended H-1B petition in certain situations where the worker is placed at a new job location for up to 30 days (60 days if the worker remains “based” at the original location).

Non-worksite locations: One is not required for H-1B workers who are visiting non worksite locations, as follows:

·      Visiting a new location for training, conferences or seminars;

              ·      Spending little time at any one location; or

·      Peripatetic jobs: Where the worker’s primary job is at one location but the nature of the job requires occasional travel of short duration to other work locations, there is no need to file an amended H-1B petition. The U.S. Department of Labor defines such types of job location changes as being of “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 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”

What should H-1B employers do now to remain in compliance with the new USCIS policy?

Under the new policy guidance, H-1B employers may be required to file amended I-129 petitions to reflect employment location changes for existing or new H-1B workers depending on when the employee moved to the new location:

On or before April 9, 2015: Where H-1B workers moved to a new area of employment on or before the Simeio Solutions decision date, USCIS has confirmed that they will generally not initiate new adverse actions, including revoking the H-1B petition, solely based on the employer’s failure to file an amended petition based on this new guidance. However, USCIS may still deny or revoke such H-1B petitions for other violations that are not related to the change of employment location. Any adverse actions initiated by USCIS before July 21, 2015 remain in effect.

April 10, 2015 to August 18, 2015: USCIS has extended a “safe harbor” filing period for employers whose H-1B workers have already moved to new work locations between April 10 and August 18, 2015. If such employers file new or amended H-1B petitions to reflect the work location change by January 15, 2016, USCIS will consider them to be in compliance upon the new H-1B petition approval.

On or after August 19, 2015: For work location changes on or after August 19, 2015, employers are required to file amended or new H-1B petitions before the employee moves to the new site.

What if the amended H-1B petition is denied?

As long as the original H-1B is valid at the time the amended petition is denied, the H-1B worker may be able to continue working at the initial worksite under the terms and conditions of the original H-1B petition.

What if the job location changes again while the amended H-1B petition is pending?

If the worksite location changes again after an amended H-1B petition is filed but before it is approved, the employer may file another amended petition to reflect the new work location. The worker may move to the new worksite as soon as the new petition is filed. However, each of the filed amended H-1B petitions must eventually be approved. The denial of any H-1B petition in a chain of several pending cases will result in all successive petitions being denied as well.

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*Milen Saev is a partner with Saev Hernandez Immigration Practice, PLLC in Nashville, TN. His practice is focused primarily on business immigration law with emphasis on PERM labor certification applications, temporary and permanent employment-based cases for multinational company employers, consular visa applications, investment visas and related immigration matters for businesses, universities, and individuals. Milen may be reached at (615) 647-8628 or milen@shipvisa.com.