Immigration thoughts from an Immigration Lawyer.

New H1B Rule: Amended petition is needed when you change your work location

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on July 21, 2015, USCIS published its “Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC.” Under this new rule, whenever a company wants to relocate its H1B worker(s) to a different metropolitan statistical area (MSA), the company must file not only a new Labor Condition Application (LCA) with the Department of Labor, but also an amended or new 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 do you have to file an amended or new petition?

  • Relocation on or before 04/09/2015
    • Filing of an amended or new petition is optional, and USCIS will “generally not pursue new revocations or denials” based on the failure to file an amended or new petition, unless USCIS has already started such adverse action before 07/21/2015 (date of this announcement).
  • Relocation between 04/10/2015 and 08/18/2015
    • Company must file an amended or new petition by 01/15/2016.
  • All relocation on or after 08/19/2015
    • Company must file an amended or new petition before the H1B employee starts working at the new location.

When is 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. You can find out whether or not your new work location is in the same MSA as your current work location here.
  • 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).”

How does the process work?

  • 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 your amended H1B petition is denied, you can return to your original location and keep working there, 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. However, any prior denial of the amendment request will result in the denial or all requests filed thereafter.
  • The failure to comply with this new policy means the Company will be out of compliance with the regulations, and be subject to adverse actions (e.g. revocation of H1B status). The H1B employee will also not be maintaining their legal status and be subject to adverse actions.

With this new rule, the employers will have to spend more time and money to file for the amended or new petitions. Moreover, since it takes time to prepare for filing of the amended or new 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.

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