[Update] On July 21, 2015, USCIS published its final guidance regarding this issue. Check the final guidance here.
It had been the rule that whenever a H1B worker changes work location to a different metropolitan statistical area (MSA), the employer had to refile a Labor Condition Application (LCA). Now, the new rule requires that the employer not only refile a LCA with the Department of Labor, but also file an amended H1B petition with the USCIS. This new rule is based on USCIS’ Administrative Appeal Office (AAO)’s recent precedent decision, Matter of Simeio Solutions, LLC on April 9, 2015.
When to file an amended petition and how does it work?
- If you changed work location before 05/21/15 to a different MSA, you must file an amended petition by 08/19/15.
- For future change in work location, you must file an amended petition before the H1B employee can start working at the new location.
- Once you file the amended petition, the H1B employee can immediately begin to work at the new location. You don’t need to wait for the decision.
- If you do not file an amended petition by August 19, 2015, you will be out of compliance, which means both the employer and employee will be subject to adverse action. The H1B employees may lose their legal status.
- If your amended H1B petition is denied, you can return to your original location and keep working, as long as your original petition is still valid.
- If you change your location for the 2nd time while the first amended petition is still pending, you can file another amended petition and start working at the new location.
When an amended H1B petition is NOT needed
- A relocation within the same MSA
- If your new work location is within the same MSA as the original petition, you do not need to file an amended petition, but you still need to post the previously obtained LCA at the new work location.
- Short term placements
- Under certain circumstances (20 CFR 655.735), you may temporarily work at a new job location for up to 30 days or 60 days, without obtaining a new LCA, and thus do not need to file for an amended petition.
- Work at a “non-worksite” – No need for an amended petition if:
- You are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- You spend little time at any one location; or
- The job is “peripatetic in nature,” such as situations where your primary job is at one location but you occasionally travel 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 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”
With this new rule, it is expected that the employers will have to spend more time and money to file for the amended petitions. Moreover, since it takes time to prepare for filing of the amended petition, there will be a delay in the employers’ ability to relocate H1B workers. Although this rule is meant to protect the H1B workers by ensuring that they are paid the Prevailing Wage at the place of employment, the amount of work required for the compliance seems to be overwhelming for employers. At the same time, H1B workers now have one more thing to worry about in maintaining their H1B status.