May 21, 2015 – USCIS guidance announcement
USCIS has today announced that whenever there is a new location for an employee outside the Metropolitan Statistical Area (MSA), merely filing a new LCA is not enough – An amended H1B petition has also to be filed. An employer must file an amended H-1B petition if their 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”, even if a new LCA is already certified and posted at the new location. Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location without waiting for a final decision on the amended petition for that H-1B employee to start work at the new location. This is based on a recent decision of USCIS Administrative Appeal Office (AAO) who has issued a precedent decision in the Matter of Simeio Solutions, LLC.
What happens to existing cases before the announcement on May 21, 2015 – Employers must file amended petition before August 19, 2015?
USCIS has also announced that if any of the H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, the employers have 90 days from the date of this announcement (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if an employer has not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, they have until August 19, 2015 to file an amended petition. Also, if any of the H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against the employer or the employee if the employer, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, the employer must now file an amended petition for these H-1B employees by August 19, 2015. If the employer does not file an amended petition for these employees by August 19, 2015, they will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, the H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
If somehow, the amended H-1B petition is denied, but the original petition is still valid the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite. Moreover, if the previously-filed amended H-1B petition is still pending, the employer may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon employer’s latest filing.
This would not apply if the new work location is within the same metropolitan statistical area (MSA) or an “area of intended employment” covered by the existing approved H-1B petition. If the H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, the employer does not need to file an amended H-1B petition. However, the employer must still post the original LCA in the new work location within the same MSA or area of intended employment.
Short term placement : Under certain circumstances, an employer may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA.
Non-worksite locations: Also, if H-1B employee is only going to a non-worksite location, the employer does not need to file an amended H-1B petition. A location is considered to be “non-worksite” if the H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars, where the H-1B employees spend little time at any one location; or the job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel 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).”
Here is the link to USCIS announcement : http://www.uscis.gov/news/alerts/uscis-guidance-when-file-amended-h-1b-petition-after-simeio-solutions-decision
Bhatia & Co., Inc 