In a recent Administrative Appeal Office (AAO) decision, Matter of Simeio Solutions, LLC, the court held that a change in the beneficiary’s place of employment to a different MSA is a material change with respect to the immigration regulations, and, thus, requires that the sponsoring petitioner file an amended or new H-1B petition with a corresponding Labor Certification Application (LCA) for the new location.

Prior to this decision, it was a long standing practice that no amended or new petition was required for a change in work location so long as a new LCA was certified for the new work location before the beneficiary’s reassignment to that work location.

On May 26, 2015 USCIS posted draft guidance on the impact of on the Simeio Solutions decision to clarify when an amended H-1B petition is/is not required:

When the Employer Must File an Amended Petition

The Employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

USCIS noted that the H-1B employee can immediately begin to work at the new location once the amendment is filed. An approval on the amend petition is not required for the H-1B employee to start work at the new location.

When the Employer Does NOT Need to File an Amended Petition

  • Move within MSA: A new LCA is not required when the H-1B employee is moving to a new job location within the same MSA or area of intended employment. No amendment petition is required either. However, the original LCA must be posted in the new work location within the same MSA or area of intended employment.
  • Short term placements: Under certain circumstances, when an H-1B employee works at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), new LCA is not required. No amendment petition is required either.
  • Non-worksite locations: If the H-1B employee is only going to a non-worksite location, the employer does not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
  • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  • The H-1B employees spend little time at any one location; or
  • The job is “peripatetic in nature,” such as situations where their primary job is at one location but they 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).”

Time Frame to File Amended Petition after USCIS Guidance

  • If the changing of worksite locations happened at the time of the Simeio Solutions decision, the employer will have until August 19, 2015 to file an amended petition.
  • If changing of worksite locations happened BEFORE the Simeio Solutions decision, USCIS will not take adverse action against the employer and employee if they, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, the employer MUST now file an amended petition for these H-1B employees by August 19, 2015.

According to USCIS, the employer will be out of compliance and subject to adverse action if the amended petition is not filed per the deadlines noted above.

Additionally, USCIS clarifies that if the H-1B petition seeking amendment is denied, the H-1B employee may still return to the worksite covered by the original petition as long as the original petition is still valid.

Although this guidance presently remains in draft status (not yet finalized), it is anticipated that little, if any changes, will occur before being published as final guidance. As such, employers should be very aware of beneficiary reassignments/changes in work location and coordinate closely with their counsel with regard to filing the necessary H-1B amended petitions in accordance with the new USCIS guidance.