United States: USCIS Guidance Clarifies Employer Obligations To Amend H-1B Visa Petitions, Sets Compliance Deadline

On May 21, 2015, the U.S. Citizenship and Immigration Services (USCIS) issued guidance on an employer's obligation to amend an H-1B visa petition to report a change in the employee's worksite location.  This guidance is in response to the Administrative Appeals Office's recent decision in Matter of Simeio Solutions, LLC, in which it determined that an employer must file an amended H-1B petition when a new Labor Condition Application for a Nonimmigrant Worker (LCA) is required due to a change in the H-1B employee's location of employment.¹

According to the new USCIS guidance, an employer is required to file an amended H-1B visa petition if the H-1B employee's worksite location is going to change or has changed to a new location outside of the metropolitan statistical area (MSA) or an "area of intended employment" covered by the existing H-1B visa petition.  This is true even if the employer has already obtained a new LCA for the new employment location.  The USCIS clarified also that the H-1B employee may begin working at the new worksite location once the amended H-1B petition is filed with USCIS and before the amendment is approved.

Additionally, the USCIS confirmed that an amended petition is not required when the H-1B employee is moving to a new employment location if the new location is within the same MSA or area of intended employment.  In this case, the employer is still obligated to post the original LCA in the new worksite location to maintain compliance.

The USCIS further advises that employers have 90 days from May 21, 2015 (i.e., until August 19, 2015), in which to file an amended H-1B petition to report a change in an employee's worksite location, where the change of location occurred on or before the Simeio decision.  The USCIS will not take adverse action against an employer that did not file an H-1B amended petition prior to the Simeio decision if the employer relied in good faith on prior non-binding agency guidance.  Going forward, however, an employer that fails to follow the new USCIS guidance will be deemed out of compliance with USCIS regulation and policy and subject to adverse action.  Such adverse action will extend to the H-1B employee who will also be found to have violated his or her H-1B status for failure to amend the H-1B petition in accordance with this new guidance.

Footnote

1. See Kristin A. Meister, Amended H-1B Petition Required for Changes in Employment Location, Littler ASAP (Apr. 17, 2015).

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