USCIS Issues Guidance on Filing an Amended H-1B Petition Due to a Change in Worksite and Offers Safe Harbor Filing Window
While not quite as critical as keeping track of your children at curfew, consider this your Public Service Announcement on the importance of tracking the whereabouts of your sponsored foreign national employees. At times, Human Resources professionals are the last to know of material changes to employees' job responsibilities and even location of employment, but H-1B visa sponsorship is employer, job and location specific, and failure to keep track of your employees may jeopardize their immigration status and your employer obligations under the H-1B sponsorship rules.
U.S. Citizenship and Immigration Services (USCIS) recently issued a policy memorandum confirming when an employer is required to notify USCIS and the Department of Labor of an H-1B employee's relocation to one or more new worksites. This guidance is issued in response to a precedent decision published on April 9, 2015 by the Administrative Appeals Office (AAO), In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). In short, the guidance simply confirms USCIS's existing policy and the long-standing, historical approach of filing an amended H-1B petition supported by a new Labor Condition Application (LCA) when an H-1B worker's new worksite is outside the "area of intended employment" specified in the original H-1B petition. In recent years, however, some employers have chosen to rely upon a liberal interpretation of the regulations and previous agency policy pronouncements and merely obtain a certified LCA to post at the new worksite without filing an amended H-1B petition. For those employers, this case and the corresponding USCIS memorandum comes as a firm reminder that prior USCIS guidance can no longer be loosely interpreted to avoid the filing of an amended H-1B petition.
The USCIS memorandum provides guidance for employers who need to come into compliance with the Simeio decision and also confirms that all H-1B employers must file an amended H-1B petition supported by a new LCA before an H-1B worker begins providing services at a new worksite. USCIS also provides to employers a safe harbor allowing wayward employers to bring themselves into compliance by January 15, 2016. A summary and timetable is as follows:
- If an employer moved its H-1B employee to a new place of employment (not covered by an existing, approved H-1B petition) on or before April 9, 2015 (date of publication of the Simeio decision), the employer may choose to file an amended H-1B petition by January 15, 2016 and the request to change the H-1B employee's place of employment will be deemed timely.
- If an employer moved its H-1B employee to a new place of employment (not covered by an existing, approved H-1B petition) after April 9, 2015 but prior to August 19, 2015, an employer must file an amended H-1B petition by January 15, 2016 and the request to change the H-1B employee's place of employment will be deemed timely. If the employer does not file the amended H-1B petition by the end of the safe harbor period, the employer will be out of compliance and subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.
- If an employer moved its H-1B employee to a new place of employment (not covered by an existing, approved H-1B petition) on or after August 19, 2015, the employer must file an amended H-1B petition before the H-1B employee starts working at a new place of employment not covered by an existing, approved H-1B petition.
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