On Tuesday July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) released final guidance on a recent Administrative Appeals Office (AAO) decision requiring amended or new H-1B petitions for workers who change job sites. These requirements continue to only affect H-1B workers who move to a site outside the “area of intended employment” for which the original petition on their behalf was filed. “Area of intended employment” is the area within normal commuting distance of the worksite where the H-1B is employed.
Guidance on what employers are required to do depends on the date of the employee’s move, which are drawn from the publication dates of the Simeio case and issuance of USCIS policy memos. All changes described below are for changes in the place of employment that require certification of a new Labor Conditions Application (LCA). These actions can be split into three categories by date:
1. “Pre-Simeio” place of employment changes on or before April 9, 2015
- USCIS will not pursue new “adverse actions” i.e. denials or revocations unless other violations are discovered to have occurred.
- In process or decided denials and revocations will stand.
2. “Safe harbor period” for place of employment changes from April 10, 2015 to August 18, 2015
- The petitioner MUST file an amended or new petition by January 15, 2016.
- If an amended or new petition is not filed, USCIS will consider the petitioner and the worker to be out of compliance and the employee may be found to not be maintaining H-1B status.
3. “Post-Simeio” place of employment changes on or after August 19, 2015
- The petitioner MUST file an amended or new petition BEFORE the employee begins working at the new place of employment.
The January 15 deadline will allow employers to retroactively file for employees who changed job locations to a work location outside the area of intended employment before August 19. It is critical that human resource representatives, line managers, and other relevant company decision makers are aware of this important change in the regulations.
Please notify your Mintz Levin attorney as soon as a change in location is proposed so that s/he can analyze the location change to determine whether or not an amended H-1B petition needs to be filed.