Many H-1B employers, especially in the IT industry, send their employees to various locations to work for clients. Unfortunately, they don’t always realize that such a move could result in revocation of an H-1B visa. On July 21, 2015, USCIS released its final guidance on when such employers must file an amended or new H-1B petition for changes in work location. This follows a recent decision in Matter of Simeio Solutions, LLC (Simeio). The decision and guidance clarify when there is a material change in the conditions of employment, the employer must obtain a new Labor Condition Application for Nonimmigrant Workers (LCA) and amended H-1B petitions.
Prior to this new decision, there was a great deal of ambiguity in the rules which resulted in conflicting decisions around the country.
In Simeio, the company had an H-1B employee working at various client sites in different parts of CA and NY. The company didn’t disclose this and USCIS revoked the H-1B visa. The case went to the Administrative Appeals Office (AAO) which confirmed the USCIS action. The AAO held that an H-1B employer must file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s place of employment.
The case revolved around the key fact that the employee was working in locations outside the Metropolitan Statistical Area (MSA) as disclosed in its LCA. Before an employer can file an H-1B petition, it must get an LCA from the Department of Labor. An LCA form requires the employer to state where the employee will be working and the offered wage that must be equal to or greater than the prevailing wage for that location. In Simeio, the LCA provided that the employee would be working in San Bernardino county, but he was sent to various client sites in Los Angeles and NYC. These were different MSAs and they had higher prevailing wages. As a result, the AAO stated a change in work locations was a material change in the condition of employment and the employer had to get a new LCA certified and then submit an amended H-1B petition.
The AAO decision resolved a conflict among USCIS service centers in how to handle these cases. While the California Service Center required companies to disclose such changes in location and file an amended H-1B petition, the Vermont Service Center held that so long as the employer had a valid LCA, it didn’t need to file an amended petition.
The USCIS final guidance provides for several exceptions to the rule requiring a new LCA and H-1B petition. These are:
- A move within an “area of intended employment.” If an employee works at a different location, but it’s within the same MSA that was certified in the LCA, then the employer does not need a new LCA. However, a copy of the LCA must be posted at the new work location.
- Short-term placement. An employee may be placed at a new worksite for up to 30 days (or 60 days if the new location is within the same MSA as the employee’s residence).
- Nonwork site locations. This applies to locations the employee goes to for other activities such as management conferences and staff seminars or in situations where an employee spends little time at any one location. It also applies when the job is “peripatetic in nature” – that is, the job is primarily at one location but the employee occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or ten consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”
The final guidance provides for a safe harbor allowing employers who have moved an employee to a new area of employment (not covered by an existing, approved H-1B petition) time to come into compliance with Simeio.
- Where an H-1B employee moved to a new area on or before April 9, 2015, USCIS will generally not pursue new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition regarding that move after July 21, 2015. An employer may also decide to file an amended or new petition by January 15, 2016, in such cases.
- In situations where employees moved to a new location after April 9, 2015, but before August 19, 2015, employers must file a new petition by January 15, 2016. If the employer has already received a notice of intent to revoke a petition, filing a new or amended petition immediately in conjunction with the safe harbor provision may help avoid revocation.
- After August 19, 2015, employers must file an amended or new petition before an H-1B employee starts work at a new place of employment.
Once the employer properly files the amended or new H-1B petition, the H-1B employee can immediately begin work at the new worksite. The employer is not required to wait for the final decision on the amended or new H-1B petition.