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USCIS Issues H-1B Amendment Guidance
Practical Law Legal Update 3-614-3925 (Approx. 4 pages)
USCIS Issues H-1B Amendment Guidance
by Practical Law Labor & Employment
| Published on 26 May 2015 • USA (National/Federal) |
US Citizenship and Immigration Services (USCIS) issued draft guidance in the wake of an Administrative Appeal Office (AAO) precedent decision holding that employers must file amended H-1B petitions when a new Labor Condition Application (LCA) is required due to a change in the H-1B worker's worksite. The AAO's decision in the Matter of Simeio Solutions, LLC now represents USCIS's position on filing amended H-1B petitions prior to placing an H-1B employee at a new worksite.
On May 21, 2015, US Citizenship and Immigration Services (USCIS) issued draft guidance in the wake of an Administrative Appeal Office (AAO) precedent decision holding that employers must file amended H-1B petitions when a new Labor Condition Application (LCA) is required due to a change in an H-1B worker's worksite location. The AAO's decision in Matter of Simeio Solutions, LLC now represents USCIS's position on filing amended H-1B petitions prior to placing an H-1B employee at a new worksite (26 I&N 542 (AAO 2015)).
The AAO's decision stated that:
- A change in an H-1B employee's place of employment that requires employers to obtain a new certified LCA represents a material change under 8 C.F.R. § 214.2(h)(2)(i)(E) and (11)(i)(A).
- A material change in an H-1B employee's terms and conditions of employment necessitates the filing of an amended H-1B petition with the new LCA.
USCIS's guidance indicates that:
- An amended H-1B petition is required if an H-1B employee's place of employment changes to a new location outside:
- the metropolitan statistical area (MSA) covered by the LCA; or
- the area of intended employment covered by the currently approved H-1B petition.
- An amended H-1B petition is not required if the H-1B employee will be working at a location:
- within the same MSA or within the intended area of employment;
- for a short-term placement for up to either 30 or 60 days (see Practice Note, US Immigration Sponsorship and Third-party Worksites: Short-term Placement Rule); or
- that is not a worksite, such as a conference or a seminar location.
- Employers with H-1B employees who were changing worksite locations at the time Simeio Solutions was decided have until August 19, 2015 to file amended H-1B petitions. Employers that had H-1B employees change worksites before Simeio Solutions and relied in good faith on prior non-binding USCIS correspondence also have until August 19, 2015 to file amended H-1B petitions. Employers that fail to file an amended H-1B petition for affected workers when required are in violation of the immigration regulations and USCIS policy and may be subject to penalties, and the affected H-1B workers will not maintain lawful status.USCIS will accept comments on its draft guidance for an unspecified period of time.