In a significant development that affects all H-1B employers and H-1B workers, USCIS has issued final guidance detailing when an amended H1B petition is required to be filed due to a H1B address change.
When To File An Amended H1B Petition
Eliminating uncertainty surrounding the requirement of filing an H1B Amended Petition whenever there is an H1B work location change, USCIS has issued final guidance on when to file an amended or new H1B petition.
An H1B employer must file an amended or new H1B petition whenever a new Labor Condition Application (LCA) is required due to an H1B location change.
For the benefit of H1B employers and H1B workers, we present here:
- Key provisions laid down by the USCIS on when to file an amended or new H1B petition
- Steps H1B employers must take to remain in compliance.
A. USCIS Final Guidance: Key Components
The final guidance specifies actions that H1B employers must take:
- when there will be a H1B change of work address on or after August 19, 2015
- when the change in work location took place after April 9, 2015 but prior to August 19, 2015
- when the change in work location took place on or before April 9, 2015, and
- when an amendment is not required.
DID YOU KNOW?
The USCIS final guidance follows the April 9, 2015 precedent decision of USCIS’ Administrative Appeal Office (AAO) in the Matter of Simeio Solutions, LLC, which held that if at any time there is a change in job location which requires a new Labor Conditions Application (LCA) to be filed, this would be considered a material change and an H1B Amendment application MUST be filed.
B. When Are Amended H1B Petitions Required To Be Filed?
Employers are required to file an amended or new H-1B petition if any H1B employee is going to be moved to a new work location outside of the metropolitan statistical area (MSA) or the ‘area of intended employment’ covered by the existing approved H1B petition.
- If the H1B work location change occurs on or after August 19, 2015, the H1B amendment petition or new petition must be filed before the H1B change of address occurs.
- If the work location change occurred after April 9, 2015 and before August 19, 2015, an H1B amendment petition or new petition must be filed by January 15, 2016, otherwise, the employer and employee will be out of compliance.
- If the work location change occurred on or before April 9, 2015, the petitioner may decide whether or not an amendment should be filed by January 15, 2016. Any such petition will be timely, however, failure to file will not be a reason for USCIS to pursue revocation or a denial.
In all instances of H1B change of address after April 9, 2015, the H1B amendment petition is required even if a new LCA has already been certified and posted at the new work location in accordance with Department of Labor rules.
1. H1B Work Location Change Occurs On or After August 19, 2015
The H1B employer must file an amended or new petition before an H1B employee starts working at a new place of employment not covered by an existing, approved H1B petition. Failure to file an amended or new petition for changes in location occurring after this date may result in adverse actions against the employer and the employee, up to and including revocation of the H1B.
The employee may begin working at the new location once the amended or new petition is filed and does not need to wait for petition approval.
DID YOU KNOW?
An employer does not have to file an amended or new petition (provided there are no other material changes to the terms of the employment) when:
1. The work changes to a location are within the ‘area of intended employment’. In this case, the employer has to post the existing certified LCA at the new location for 10 business days.
2. The employee is being placed at a worksite for only up to 30 to 60 days. In cases of a ‘short-term placement’ and where a new LCA would not be needed, an amended petition is not needed.
3. The location the employee is going to is not actual ‘worksite’.
2. H1B Work Location Change Occurred After April 9, 2015 But Prior To August 19, 2015
The petitioner must file an amended or new petition by January 15, 2016.
If the petitioner does not file the amended or new petition within the time permitted,
- The petitioner will be out of compliance with DHS regulations
- The petitioner’s current H1B petition approval will be subject to a notice of intent to revoke, and
- The employee may be found to not be maintaining his or her H1B status.
If an H1B employer has received a notice of intent to revoke a petition and the response period has not ended, filing an amended or new petition now and providing evidence of that filing prior to the response deadline may avert a revocation.
3. H1B Work Location Change Occurred On or Before April 9, 2015
H1B Employers may choose to file an amended or new petition by January 15, 2016.
If an H1B employee moved to a new area of employment not covered by an existing, approved H1B petition on or before April 9, 2015, USCIS will generally not pursue new adverse actions solely based upon a failure to file an amended or new petition regarding that move.
NOTE: Employers must note, however, that such discretion of not pursuing adverse actions remains with USCIS, and it is therefore advisable that an amended or new H1B petition be filed in such cases as well to avoid exposure to undesirable consequences in future.
If an H1B employer does not file the amended or new petition by January 15, 2016 in cases that do not require an amended or new petition, USCIS will generally not pursue revocations or denials based upon failure to file an amended or new petition. However, notices of intent to revoke, revocations, requests for evidence, notices of intent to deny, or denials issued prior to July 21, 2015 will remain in effect and the employer must comply with them.
H1B Address Change: Your Next Steps
1. If any of your H1B employees need to change work locations on or after August 19, 2015, contact VisaPro before any change in the location of the workplace occurs to ascertain if an H1B Amendment Petition is required.
2. If any of your H-1B employees has changed work locations since the time their H-1B was last approved, contact VisaPro immediately to ascertain if an H-1B Amended Petition is required to be filed.
Employers have only until January 15, 2016 in certain cases of H1B work location changes to file the required amendment(s). Failure to do so by this date may have serious adverse effects on your employee’s H-1B status, including denials of any future extension of status applications and determinations that the employee is out of status.
Contact VisaPro if you need assistance in filing an H-1B Amended Petition, or need assistance in evaluating the need for filing an H-1B Amended Petition in your situation. Our experienced immigration attorneys will be happy to help you.
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