H-1B Amendment Required When Changing Jobsites – August 19, 2015 Deadline for Compliance

The Simeio H-1B guidance has been updated.     Please see the Final Policy Memorandum on Simeio.

The April 9, 2015 AAO decision In Matter of Simeio Solutions, LLC (PDF copy) put many H-1B employers (mainly those who place H-1B workers at third-party worksites) in a position to scramble and assess their current level of compliance with the H-1B regulations, as they would be interpreted by USCIS in accordance with the Simeio Solutions decision.      In an attempt to provide more clarity with their compliance approach, on May 27, 2015, USCIS issued Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision which is effective as of the date of publication but while under public comment period.  One of the main goals of the draft guidance is to (1) provide clarification on when an H-1B amendment is required and when it is not required and to (2)  establish a 90-day grace period, until August 19, 2015, for H-1B employers to take the necessary steps to become compliance (file LCA and H-1B amendments).

Our Analysis of the In Matter of Simeio Solutions Decision

Very shortly after the AAO decision came out our office provided a very thorough analysis of the AAO decision – including some historical background, pre-Simeio enforcement trends, together with detailed analysis of the decision.    We invite our readers to read our analysis for more details and background.    We also conducted a highly-attended webinar on the decision and a public archive is available.

USCIS Compliance Guide – When is an H-1B Amendment Required?

An H-1B employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.   In other words, doing an LCA only for the changed worksite location is not sufficient – an H-1B amendment filing prior to beginning work at the new worksite location is required.

Once the amended H-1B petition is filed, the H-1B employee is allowed to start working at the new worksite location.   The employer can (but does not have to) wait for the H-1B amendment decision before the H-1B employer can start work at the new worksite location.

Practical Considerations.   From practical standpoint, the requirement to have the H-1B amendment filed before the new worksite location placement begins means that the H-1B amendment process should be initiated at least 2-3 weeks (for LCA certification, preparation, signing and filing of the H-1B petition) before the anticipated starting date for the new worksite location placement.     Often third-party client requirements require much faster starting date and this H-1B amendment preparation time should be considered carefully.      Another practical consideration is that an H-1B amendment for a third-party worksite placement requires documentation of the third-party client – letters, contracts, and similar documents – which are often difficult or slow to get.

USCIS Compliance Guide – When is an H-1B Amendment NOT Required?

Helpfully, USCIS has clarified when is an H-1B amendment not required.

The New Worksite Location is Within the Same MSA.  If the new worksite location is within the same MSA or area of intended employment a new LCA is not required and, by extension, no H-1B amendment is required.    It is important to note that the H-1B employer must still post the original LCA in the new worksite location within the same MSA or area of intended employment.

Short-term Placements.   Under certain circumstances, an H-1B employer may place an H-1B worker at a new job location for up to 30 days and, in some cases for up to 60 days (where the employee is still based at the original location), without having to obtain a new LCA for the short-term placement location (20 CFR 655.735).  In these situations, the H-1B employer does not need to file an amended H-1B petition.

Non-worksite Locations.  If the H-1B worker is only going to a non-worksite location, no H-1B amendment is required.   According to USCIS, a “non-worksite location” is:

1. when the H-1B worker is going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
2. the H-1B worker spends little time at any one location; or
3. the job is “peripatetic in nature,” such as situations where their primary job is at one location but the H-1B worker occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive  (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” 20 CFR 655.715.

USCIS Compliance Guide – Grace Period to H-1B Employers to File H-1B Amendments by August 19, 2015

Having provided guidance on when an H-1B amendment filing is required and when it is not required, USCIS confirms that non-compliance with the guidance after the August 19, 2015 grace period ends (i.e. not filing an H-1B amendment when it is required) will cause USCIS to take adverse action against employers and that “H-1B employees would not be maintaining their nonimmigrant status.”

Worksite Changes Before May 21, 2015.   USCIS has advised that for worksite location changes which occurred at the time of the Simeio Solutions decision, employers will be granted a grace period of 90 days, or until August 19, 2015, to file an H-1B amendment petition.     For worksite location changes which occurred before the Simeio Solutions decision (April 9, 2015), USCIS will not take adverse action against the employer or its employees if the employer, in good faith, relied on prior guidance suggesting that an LCA only (and not H-1B petition amendment filing) is sufficient for worksite changes; however,  the H-1B employer must still become compliant by filing an H-1B amendment by August 19, 2015.

Worksite Changes After May 21, 2015.  The grace period does not seem to apply and USCIS will expect that an H-1B amendment be filed prior to the H-1B worker starting at the new worksite location.

Pending H-1B Amendments.   If there is a pending H-1B amendment, USCIS will permit another H-1B amendment to be filed, while an earlier H-1B amendment is pending, allowing the H-1B worker to begin work at the new worksite location upon filing.   However, USCIS is cautioning that in this “bridging” situation, any gaps in status or a denial of a “bridge” petition may result in a denial of the status component of any subsequent H-1B petitions.

H-1B Amendment Denial Does not Automatically Invalidate the Previous H-1B Petition.   USCIS has confirmed a denial of an H-1B amendment petition would not automatically invalidate the prior worksite location’s H-1B petition and if the H-1B worker returns to the prior worksite location, the H-1B worker may be able to continue to maintain valid H-1B status.     In many cases, the sole reason an H-1B worker moves from one location to another is project completion so it is often not possible to return to the prior H-1B worksite location; but when this is possible, this portion of the guidance allows for a backup plan to remain in H-1B status.

Compliance Steps for H-1B Employers

Needless to say, the AAO decision, the USCIS guidance, and the publicity it has received is causing a lot of discussion and anxiety, especially among H-1B employers who place their workers at third-party worksites.     Here are some points for better compliance and less H-1B issues (such as H-1B site visits, visa stamp denials and revocations).

Anticipate and Evaluate Possible New Worksite Locations.    First, any time there is the possibility of a worksite location change during the term of an H-1B petition, the employer (and perhaps the worker) should have a process to anticipate the timing of such worksite location change, including analyzing the actual worksite change location.

H-1B Amendment Not Required if New Worksite Within Same MSA or Within “Normal Commuting Distance”. The AAO decision and the USCIS guidance confirm that if there is a change to a worksite location within the same MSA or within a normal commuting distance, then the LCA remains valid and no H-1B amendment is required (but LCA posting is required).   “Normal commuting distance” can vary depending on the area – but 20, 30 or 50 miles may be considered to be “normal commuting distance.”

File H-1B Amendment “Immediately”.    The regulations require that the H-1B employer “shall immediately notify” USCIS when there is a change in the terms of the petition – essentially, an H-1B amendment must be filed before the new worksite location placement takes place.    Since a new LCA takes up to seven business days, the LCA and the H-1B amendment filing process should be anticipated and started at least 2-3 weeks before the new worksite location placement begins.      Even if this is not possible, the LCA/H-1B amendment should be done as soon as possible.

Late Compliance (H-1B amendment) is Better than No Compliance.   We would like to encourage H-1B employers who have not done the necessary H-1B compliance and who have relied on LCAs only for worksite changes to consider preparing and filing H-1B amendments as soon as possible and before the August 19, 2015 grace period expiration.

What Kind of H-1B Cases Are in Jeopardy? We do not know how much additional scrutiny USCIS would impose on existing petitions for worksite compliance, but mismatch between an actual worksite and H-1B petition is likely to cause H-1B visa stamp delays/denials and, ultimately, consular returns.   Similarly, H-1B site visits are likely to cause problems which would lead ultimately to a Notice of Intent to Revoke and a likely H-1B revocation.     H-1B extensions may also face higher scrutiny to establish current compliance and status as part of the H-1B extension adjudication process.

Conclusion

We would like to iterate clearly that based on recent developments and trends we see,  we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     Also, employers should evaluate their H-1B workers’ case files to determine whether there are cases which need to be brought into compliance before the August 19, 2015 grace period expires.

We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.