USCIS Releases Final Guidance on When to File an Amended H-1B Petition Due to Work Location Change (RAHUL REDDY & REBECCA CHEN, ATTONEY'S AT LAW)
On July 21, USCIS released its final guidance concerning when an amended H-1B petition is needed due to a work location change, in light of the April AAO decision in Matter of Simeio Solutions, LLC. Previous statements by USCIS on this matter, particularly its web alert released on May 21, are considered interim guidance only; H-1B employers and employees should now rely on and follow the final guidance released on July 21, which provides:
When an Amendment is Needed
When an amendment petition is required will depend on when the H-1B employee changed work locations. If the work location change occurred:
(1) On or before April 9, 2015: The final guidance states that “USCIS will generally not pursue new revocations or denials based upon failure to file an amended or new petition.” This means that if the work location change occurred prior to April 9, and there are no other regulatory violations, an amended H-1B petition is probably not required. The guidance states that if the employer chooses to amend the petition anyway, it must do so by January 15, 2016. Amending the petition is advisable if there are other grounds for H-1B revocation involved, besides the work location change.
(2) Between April 10 and August 18, 2015: An amended petition is required, and must be filed by January 15, 2016. In this final guidance, USCIS has essentially extended the prior August 19 deadline that it set in May.
(3) On or after August 19, 2015: A work location change that occurs on or after August 19 requires an amended petition, and the petition must be filed prior to the start of work at the new location.
The definition of “new work location” remains unchanged from USCIS’s prior guidance following the Simeio Solutions decision – an amended petition is only required if the new location is outside the Metropolitan Statistical Area (MSA) of the work location(s) listed in the employee’s most recently-approved H-1B application. A list of MSAs recognized by the government is available at: www.bls.gov/oes/current/oessrcma.htm, but please contact an attorney if you are uncertain concerning the MSA boundaries.
Additional Information Regarding Amended Petitions
The final guidance also confirmed that if an amended petition is denied, but the original H-1B approval is still valid (unexpired), the H-1B employee may maintain his/her status by returning to one of the work locations covered by the original approved petition.
In addition, the guidance confirmed that subsequent amended petitions may be filed while a previous amended petition is still pending, in order to allow the H-1B employee to start work at a new location. However, the previous petition must still meet all the requirements of H-1B classification. Due to the difficulty of documenting project work at client locations at which the employee is no longer based, we would advise avoiding, if possible, having multiple petitions pending concurrently for the same H-1B worker. This can be avoided by filing an amended petition in premium processing if it appears that the H-1B employee will be assigned at that location for less than 6 months.
How to Proceed Now
In light of this final guidance, H-1B employers should review potential amended petitions that they are currently preparing to file, or are considering filing. The timing of the work location change will, in most cases, become the main factor in determining whether or how to proceed with the amendment process. We recommend that employers contact their immigration counsel to review these cases and determine whether and when an amended petition should be filed.
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.