Authored by Diane E. Metzger
Jul 23, 2015
The United States Citizenship and Immigration Services just issued updated guidance explaining when H-1B employers must file a new or amended H-1B petition after a change in an H-1B employee’s physical worksite. The new guidance hopes to alleviate any lingering confusion about when an H-1B amendment is necessary as well as to address H-1B employers’ concerns about compliance timelines and penalties.
Though not perfect (the guidance haphazardly uses the terms “place of employment” and “area of employment” interchangeably even though the terms have very different meanings under the applicable regulations), the guidance reinforces the holding in Matter of Simeio Solutions (see our previous blog) that the prior practice of only posting a new Labor Condition Application (LCA) notice at the new worksite and not filing a new H-1B petition is insufficient to allow the H-1B worker to legally commence working at the new worksite. The guidance also clarifies that if the new worksite is located outside the metropolitan statistical area covered by the previously approved LCA, a new LCA and H-1B petition must be filed for the new work location.
Employers who, during the period from Apr. 9, 2015 to Aug. 19, 2015, moved H-1B employees to a new worksite outside the metropolitan statistical area of the previously approved LCA have a grace period (until Jan. 15, 2016) to file a new or amended H-1B petition for the new worksite in order to remain in compliance. After Aug. 19, 2015, however, all H-1B employers must file a new or amended H-1B petition before the H-1B employee can begin working at the new location not covered by the previously approved LCA.
Potential Fines, H-1B Revocations
Failure to comply with the provisions set forth in Matter of Simeio and the updated guidance could result in fines to H-1B employers, revocations of H-1B petitions, and a finding that the H-1B worker is not in proper legal status. Therefore, it is very important that H-1B employers review the placement of their H-1B employees and consult with immigration counsel to determine if an H-1B amendment is needed.
If you have any questions about the H-1B visa or any other business immigration matter, please feel free to contact Diane Metzger.