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USCIS Finalizes Policy Regarding Change in H-1B Worksites

July 22, 2015

United States Citizenship and Immigration Services (USCIS) released final guidance regarding when employers are required to file an amended or new H-1B petition following a change to an employee's worksite. This guidance follows the April 9, 2015, Administrative Appeals Office (AAO) precedent decision in Matter of Simeio Solutions, LLC (Simeio) and is effective July 21, 2015; superseding prior guidance.

Matter of Simeio Solutions, LLC

The AAO held in Simeio that a change in the place of employment of an H-1B employee to a geographical area that requires a corresponding Labor Condition Application (LCA) to be filed and certified is a material change in the terms and conditions of the H-1B employment. As such, the change in worksite requires the employer to file an amended or new H-1B petition with a corresponding LCA before placing the employee at the new worksite. Prior to Simeio, a change in worksite was not generally considered to be a material change and did not create an obligation for an employer to file an amended petition.

When to File an Amended or New H-1B Petition

Under the final guidance, an H-1B employer must file an amended or new H-1B petition if an H-1B employee changes his or her location of employment to a geographical area that requires a corresponding LCA to be filed and certified, even if a new LCA has already been certified and posted at the new location.

Exceptions

A change in an H-1B employee’s location of employment only triggers a need to file an amended or new petition where the change also requires a corresponding new LCA. As such, there are several notable exceptions that may prevent an employer from needing to file an amended or new petition.

Best Practices

In light of Simeio and subsequent USCIS guidance, employers should review existing H-1B petitions to determine if there has been a change in the covered employee’s location of employment and, if so, whether an amended petition is needed. Employers should identify the date the change went into effect and assess whether an amended or new petition should be filed in their discretion and/or is required to be filed in order to remain compliant with H-1B regulations.

Employers should then take action to file any necessary amended or new petitions prior to January 15, 2016. If an employer is required to file an amended petition and fails to do so, they will fall out of compliance with H-1B regulations and the covered employee will be considered out of lawfully maintained nonimmigrant status, subjecting both the employer and employee to adverse action.

If an employer knows an H-1B employee will be changing his or her location of employment in the future, they will want to plan accordingly in advance of the change to ensure adequate time to file an amended or new petition before the H-1B employee makes the move. It is only necessary that the amended or new petition be filed, but not approved, before the employee moves to the new location.

If you have any questions regarding the Simeio guidance and H-1B compliance or would like assistance with filing amended or new H-1B petitions, please contact Miller Canfield’s Immigration Group.

Rebecca Mancini
+1.734.668.8937
mancini@millercanfield.com