Attention H-1B employers! A recent precedent decision by the Administrative Appeals Office now requires H-1B employers to file an amended petition when there is a change in the worksite. The decision, Matter of Simeio, states that
“A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change.”
The H-1B regulations require an amended petition when there is a material change in the terms and conditions of employment or training or the foreign national’s eligibility for H-1B status. Because the AAO has determined that a change in worksite is a material change, an amended petition must now be filed when there is a change in worksite.
Why Didn’t We Have to File An Amended Petition Before?
Until this decision, employers typically did not file an amended petition when the only change was a new worksite. This was based on a letter from Efren Hernandez, Director, Business and Trade Branch, USCIS in 2003. This letter says that if there is a change in worksite location and a new LCA has been certified for that location, an amended petition is not required (assuming there were no material changes that would require an amended petition).
What Does All This Mean?
Based on Matter of Simeio, an H-1B employer must file an amended petition when there is a change in worksite. An amended H-1B petition requires the same forms, supporting documents, etc, as a new H-1B petition or H-1B transfer/extension. We recognize that this is not welcome news for H-1B employers and employees, and we are working hard to make this process as seamless as possible for our clients. Some Frequently Asked Questions on the H-1B amendment process (updated 5/22/2015 based on guidance from USCIS issued 5/21/2015):
- When do I have to file the amended H-1B petition?
The regulations state that the H-1B petitioner must “immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility.” Therefore it is recommended that the amended petition be filed immediately before starting work at the new worksite. USCIS has confirmed that an employee may begin working at the new worksite as soon as the amended petition is filed; it is not required for the petition to be approved first.
- How much does it cost to file the amended H-1B petition?
The legal fee for our clients remains the same as the legal fee for regular H-1B petitions, as it is the same amount of work involved. The USCIS filing fee for an amended petition is $325. However, in some instances the employer may also wish to request an extension of status. In that case, the employer fee of $750 or $1500 (depending on the number of employees) would also apply, if this is the first extension.
- Will the end date of my H-1B status be affected?
If you file an amended petition only and not an extension, generally speaking the H-1B validity period for the approved amended petition should be the same as the original validity period. However, there is a concern that the amended H-1B petition could be approved for a shorter validity period, if the work order for the new worksite is for a shorter period of time. Generally speaking, if the work order for the worksite in question is valid for less than a year, USCIS will approve the H-1B petition only for one year.
- What documentation do I need to file the H-1B amendment?
If the Sumner Immigration Law team has previously filed your H-1B petition, we do not need your educational certificates, etc again as we will have those on file. We will need your updated pay stubs, updated I-94 if you have traveled, the contract, work order and end client letter for the new project/worksite, etc. Each case is unique and we will advise as to the specific documents required once you have retained us to assist.
- What if the new worksite is within the same MSA or within commuting distance?
USCIS has confirmed that an amended petition is not required when the H-1B employee is moving to a new job location within the same MSA or area of intended employment. Area of intended employment means “the area within normal commuting distance of the place of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas…If the place of employment is within a MSA, any place within the MSA is deemed to be within normal commuting distance of the place of employment.” (20 CFR 655.715)
- Are there other instances in which an amended petition is not required?
USCIS has confirmed that an amended petition is not required for certain short-term placements, which can be up to 30 days in a one year period, or in certain instances up to 60 days in a one year period. Further, an amended petition is not required for non-worksite locations. A location is a non-worksite if:
- The H-1B worker is going to a different location to participate in employee developmental activities (management conferences, staff seminars, etc), or
- The H-1B employee spends little time at any one location, or
- The position is “peripatetic in nature,” in that the normal duties of the worker’s occupation (rather than the nature of the employer’s business) requires frequent travel (local or non-local) from location to location.
These requirements are quite detailed and the each case is unique; you must consult with a qualified attorney to determine if and how these provisions would apply to your specific case.
What Must We Do Now?
- Going forward, anytime there is a change in worksite (aside from the exceptions listed above), the H-1B employer must file an amended petition with USCIS before the H-1B employee starts working at the new worksite.
- If an H-1B employee has changed worksites since the last time an H-1B petition was filed for that employee, regardless of when the change in worksite happened, the H-1B employer must file an amended petition for the that H-1B worker by August 19th, 2015. This is true even if the H-1B petitioner filed a new LCA and had it certified before the H-1B employee started working at the new worksite (that is, even if you properly relied on previous USCIS guidance).
- If you do not file the amended petition for changes in worksites by August 19th, 2015, or if you do not file an amended petition for future changes in worksites, USCIS guidance from May 21st, 2015 states that “you will be out of compliance with USCIS regulations and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.”
What is the Good News?
Unfortunately this change in requirements for an H-1B amendment will not come as welcome news to most employers and employees. Our team is hopeful that in many instances a change in worksite will coincide with an H-1B extension anyway. That is, often when the work order or purchase order for a particular H-1B worker is valid for a year or less, the H-1B petition is approved for only one year. That means when the work order is up, either:
- It is extended and an H-1B extension is filed for the same location, or
- The H-1B worker changes work locations, which now requires an amended petition, but it is likely that an H-1B extension would have been needed to have been filed anyway, since it’s likely that the H-1B petition was only approved for one year. It is possible to file an amendment and an extension in the same filing; this will save legal and filing fee costs.
Please contact our office with any questions regarding this change. We look forward to working with you to ensure full compliance and successful H-1B filings for our clients, both existing and new!