Employers May Be Required to File Amended H-1B Petitions

Employers of H-1B workers may have to file amended H1B petitions for their employees as a result of the Simeio Solutions decision issued April 9, 2015 by the Administrative Appeal Office (AAO). United States Citizenship and Immigration Services (USCIS) provided interim guidance to employers on when to file amended H-1B petitions in a news alert released May 21, 2015.

The Simeio Solutions decision specifically stated:

  1. When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change 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) (2014).
  2. 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.

What this means for employers is that they must file amended or new petitions for H-1B employees when a change in the H-1B worker’s worksite location or terms and conditions of his employment is cause for a new Labor Condition Application for Nonimmigrant Workers (LCA).

When Are Employers Required to File an Amended H1B Petition?

Employers are required by USCIS to file an H1B amendment before the H-1B employee begins working at a new worksite, considering that the new location is outside the area of employment covered by the current approved H-1B petition. If the new worksite location is outside the metropolitan statistical area (MSA) defined in the existing petition, an amended H-1B is required.

Once the new or amended H1 visa petition is filed, the H-1B employee may begin working at the new location. There is no need to wait for a final decision.

When is it Not Necessary to File an Amended H1B Petition?

Employers are not required to file an amended H-1B petition in the following cases.

  • Same MSA worksite moves. H-1B employees placed in a new worksite location within the same MSA covered by the existing H-1B petition do not require that the employers file an amended petition.
  • Temporary worksite moves. H-1B employees temporarily placed at a new worksite location for up to 30 days (in some cases 60 days) may not require that the employer file an amended petition.
  • Non-worksite locations. H-1B employees moving to a non-worksite location do not require that the employer file an amended petition. A location may be non-worksite if:
    • It has the purpose of employee developmental activity such as management conferences or staff seminars;
    • Employees spend little time at any one location; or
    • It is a place other than the primary job location where the employee travels occasionally for a short period, which can be recurring but not excessive (no more than 5 or 10 consecutive workdays for one visit).

Filing H1B Amendment

Employers should be aware of the following before filing amended petitions for H-1B workers.

  • If the employee changed the worksite location at the time of the Simeio Solutions decision, the employer must file an amended petition within 90 days from the date of the web alert (May 21, 2015).
  • If the employee changed the worksite location before the Simeio Solutions decision, the employer must file an amended petition within 90 days from the date of the web alert (May 21, 2015).
  • If your amended H-1B petition is denied, the employee’s H-1B status is still valid and the employee may return to the worksite covered by the original petition.
  • If your previously filed, amended H-1B petition is pending, employers may file the petition again to allow their employee to change the worksite location.

In cases where amended H1B visa petitions are required, employers are recommended to:

  • File amended petitions before August 19, 2015. Otherwise, employers will be subjected to adverse action.
  • Submit receipts of all prior petitions.

In addition, H-1B employees should maintain their nonimmigrant status. Otherwise, they may be subjected to adverse action.

In the situation that the employee’s H-1B visa status expires while the successive amended H-1B petition is pending, and the petition for extension of H-1B status is denied, the amended petition as a result will be denied as well.

Learn more about H1B Amendment.