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An amended H-1B petition needs to be filed if the visa holder’s place of employment will be at a location outside of the metropolitan statistical area documented on the original filing, U.S. Citizenship and Immigration Services (USCIS) clarified in a May 21, 2015, draft guidance.
The guidance follows an April 9, 2015, decision by the USCIS Administrative Appeals Office (AAO) that significantly impacts H-1B employers.
In the Matter of Simeio Solutions, the AAO ruled that employers must file an amended or new H-1B petition with a corresponding labor condition application (LCA) when a new LCA is required due to a change in the visa holder’s worksite location.
When You Must File an Amended Petition
Employers 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 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. The H-1B employee can immediately begin working at the new location once the amended petition is filed, even while the petition is pending, USCIS explained.
Filing Amended H-1B Petitions
Employers with H-1B workers who have changed worksite locations before May 21, 2015, must file amended petitions by Aug. 19, 2015. USCIS will not take adverse action against these employers. However, if amended petitions are not filed by the deadline, they will be out of compliance and subject to adverse action. The H-1B workers involved would also be subject to adverse action for not maintaining their status.
Employees with a valid H-1B status may return to the original worksite if the amended H-1B petition is denied. If the employee changes worksites yet again while the amended H-1B petition is pending, another amended petition must be filed.When an Amended H-1B Petition Is Not Needed
Amended H-1B petitions are not needed if the H-1B employee is moving to a new job location within the same metropolitan statistical area or area of intended employment documented on the original filing. However, employers must still post the original LCA in the new work location in these cases. Under certain circumstances, H-1B employees may be placed at a new job location for up to 30 days, and in some cases 60 days, without obtaining a new LCA. In these situations, amended H-1B petitions are not necessary.
Amended petitions are also not necessary when H-1B workers are going to nonwork locations in order to participate in professional development activities, conferences and seminars or when the job is “peripatetic in nature,” such as situations where the primary job is at one location but workers occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive.”
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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