Under a decision issued this past April by the Administrative Appeals Office (“AAO”) of U.S. Citizenship and Immigration Services (“USCIS”), employers are now generally required to file a new H-1B visa petition whenever an H-1B employee’s job location changes. Previously, a change in job location required only submission of a new Labor Condition Application (“LCA”).
On July 21, 2015, USCIS issued final guidance regarding the timeframes within which amended H-1B petitions must be filed under this new policy. Thus, H-1B employers should give prompt attention to this issue and prepare to file amended petitions as necessary.
H-1B Visas And Labor Condition Applications
H-1B visa petitions are filed on behalf of foreign national employees who work in occupations that require the application of highly specialized knowledge and completion of a Bachelor’s degree or higher in the specialty occupation. As part of the H-1B petition process, an employer must first obtain a certified LCA from the U.S. Department of Labor (“DOL”), attesting, among other things, that the employer will pay at least the prevailing wage for the position in the geographic area where the H-1B employee will be located.
Generally, whenever a material change in the terms of employment occurs, the employer is required to file an amended H-1B petition. However, under previous USCIS guidance, a change in the job location of an H-1B employee required only a new certified LCA, and not an amended H-1B petition.
USCIS reversed its longstanding position on this issue in the recent case of Matter of Simeio Solutions, LLC.
Simeio Solutions LLC, the petitioning company, filed an H-1B petition that included a certified LCA listing the H-1B employee’s place of employment as Long Beach, California. When the employee applied for the H-1B visa at a U.S. consulate after traveling abroad, it became evident that the place of employment had changed.
The consulate notified USCIS of this change, resulting in a site visit by USCIS that revealed that the H-1B employee no longer worked at the Long Beach location. Simeio Solutions had submitted a new LCA listing Camarillo, California and Hoboken, New Jersey as the beneficiary employee’s places of employment, but had not filed an amended H-1B petition with USCIS.
USCIS then revoked the H-1B visa, on the ground that the change in the beneficiary’s place of employment constituted a material change in the terms of employment, requiring an amended H-1B petition. On review, the AAO agreed, finding that the change in job location could affect the beneficiary’s eligibility for H-1B status, as the employer might be obligated to pay a higher wage.
Timeframes For Amended Petitions
Under the guidance recently issued by USCIS in the wake of the Simeio Solutions decision, employers with H-1B employees who changed locations prior to April 9, 2015, may choose to file amended H-1B petitions by January 15, 2016. If an employer chooses not to file an amended petition for such an employee, USCIS will generally not issue a denial or revocation. However, any denials or revocations issued by USCIS prior to the date of the guidance, July 21, 2015, will remain in effect.
For a change in job location occurring between April 9, 2015, and August 19, 2015, an amended H-1B petition must be filed by January 15, 2016. Finally, for a change in job location occurring after August 19, 2015, the employer must file an amended H-1B petition before the job location change takes effect.
It is important to note that certain types of job location changes still do not require an amended H-1B petition:
In light of the Simeio Solutions decision and the USCIS guidance applying it, we recommend that H-1B employers do the following:
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Please feel free to contact us if you have questions about the Simeio Solutions decision, or if you require assistance with filing amended H-1B petitions or any other aspect of the H-1B filing process. The Firm regularly assists employers with preparing and processing H-1B and other employment-based non-immigrant and immigrant visa applications, and we would be happy to help.