In Matter of Simeio Solutions, LLC, decided April 9, 2015, USCIS’ Administrative Appeals Office held that, in addition to employers certifying a new Labor Condition Application (LCA) when an H-1B worker changes worksite locations, the US employer must now file an amended H-1B petition before placing an H-1B worker in the new worksite location. While the additional requirement is burdensome, USCIS’ rationale is that changing worksite locations may affect the H-1B worker’s eligibility in terms of wage and working conditions.
When Exactly Am I Required to Submit for an Amended H-1B?
It is only when the H-1B worker changed (or is going to change) his or her employment to a worksite location outside of the metropolitan statistical area (MSA) or outside of the ”area of intended employment” covered by the existing approved H-1B petition. The MSA is available on the Department of Labor’s website: http://www.flcdatacenter.com/. It is generally broken down by county/counties for a particular metropolitan region.
What if the H-1B Worker is going to Work at a Non-worksite Location?
No then not required to file an amended H-1B Petition.
What If I move to a Location in the Same MSA?
According to the USCIS, there is no need to update the LCA or amend the H-1B. However, it does not cost anything to update the LCA. To amend an H-1B a new filing fee of $325 would be required.
When Does this New Rule Apply?
If the H-1B worker is changing worksites now or has already changed worksites to a location outside the MSA or an area of intended employment requiring a new LCA, than the employer has until August 19, 2015 to file an amended petition with USCIS.
When Can I begin Working at the New Worksite?
The H-1B worker can begin working at the new worksite once the amended petition is filed but not yet approved. The worker cannot begin earlier than this at the new worksite.
What if the US Employer Moves Outside the MSA?
If the US employer’s location was a location listed on the original LCA and the employer is moving outside the MSA area, then the new rule applies and all employees in H-1B status will need to have new LCAs filed and certified and an amended H-1B filed. It is likely ONE H-1B Petition can filed for multiple beneficiaries but this is not yet clarified.
What if the Amended Petition Request is Denied?
If the amended petition is denied, the H-1B worker can return to the original worksite as long as the original petition is still valid.
Please contact Catherine Brown or Leslie Peden, Boulder H-1B attorneys, at 303-322-2117 if you have further questions or would like to set up a consultation regarding the H-1B visa.