Most business immigration practitioners tell H-1B employers an amended or new H-1B petition, along with a corresponding Labor Condition Application (LCA), is required whenever there is a material change in the terms and conditions of employment. But whether a change in the employment location constitutes a material change requiring an amended petition has been a topic of much discussion.
Interestingly, U.S. Citizenship & Immigration Services (USCIS) has taken the position for years that an amended petition generally was not required if a Labor Condition Application (LCA) for a new worksite location had been certified by the U.S. Department of Labor in advance of an H-1B employee’s move. Although USCIS Service Centers began to take a more restrictive approach to worksite location changes during site visits, USCIS still did not alter its policy. That is, of course, until the Administrative Appeals Office (AAO) issued its precedent setting decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) (referred to as Simeio) this spring.
In Simeio, the AAO ruled that employers must file amended petitions with USCIS when an H-1B employee moves to a new worksite that was not specified in the initial petition or the certified LCA:
A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to DHS with respect to that beneficiary may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A). When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.
Id. at 547. Effective immediately, Simeio marks a departure in policy and represents USCIS’s new position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. Once the petition is filed, however, an H-1B employee can begin working immediately at the new location before his or her petition is adjudicated.
Employers should note, however, that USCIS has carved out three exceptions to the rule announced in Simeio. According to draft guidance USCIS released after Simeio, an amended petition is not required if the employee: (i) is moving within the same metropolitan statistical area (MSA) or area of intended employment (provided that the employer posts the LCA at the worksite location); (ii) is changing worksite locations for a short-term assignment; or, (iii) will be at non-worksite location (i.e. conferences, seminars, meetings). Unless one of those three exceptions is present, employers are required to comply with the rule announced in Simeio effective immediately.
But what about employers who failed to file an amended petition when an employee’s employment was changed before Simeio? For those employers, USCIS has created a “safe harbor.” USCIS announced that it generally would not take new adverse action against an employer or H-1B employee if the H-1B employee changed worksite locations without the benefit of filing an amended petition after July 21, 2015. There is a catch, however: employers must file an amended H-1B petition for any worker who changed worksite locations (without filing an amended H-1B petition beforehand) before Simeio by January 15, 2016. If the change in worksite location without the filing of an amended petition occurred after the publication of Simeio (April 9), but before August 19, 2015, failure to file an amended petition for these employees by the January 15 deadline could result in adverse action against the employer, not to mention the affected H-1B worker would also be out of compliance and subject to adverse action.
Remember, if an employer violates its obligations under its LCA, the penalties can be serious. Among other things, employers may be precluded from future access to the H-1B and other programs for one to three years if they commit certain violations. Accordingly, to the extent that an employer has a question regarding whether there has been a material change in a foreign worker’s employment, the employer should consult its immigration counsel to determine whether an amendment to its H-1B petition is necessary.
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