As an H 1B beneficiary, you are likely to be familiarized with the processing paperwork and time it takes to apply for an H 1B visa.
Nonetheless, you might be wondering if it is not time for an amended H1B petition with the USCIs for your H1B visa.
The H1B is a non-immigrant visa that allows companies to hire workers from abroad for specialty occupations.
The first thing you need to remember about the H1B visa is that an essential element for its approval is the Labor condition application approved by the Department of Labor.
Labor condition application
Before applying for an H1B visa for a foreign worker, the prospective employer submits a Labor Condition Application with the DOL.
The LCA describes the terms and conditions of employment and job duties and is filled for the geographic area of intended employment covered, and such information will control the prevailing wage, posting, and other worksite-related obligations to the employer.
The approved LCA applies to any worksite within this “area of employment” and must be posted at a visible place on the worksite, so other employees have easy access to it, for at least 10 days before the commencement of the H1B worker’s activities. The employer can either post a hard copy of the LCA or provide electronic notice to all employees.
Once the LCA petition is approved, the H-1B beneficiary must work under the conditions described in it.
Compliance with Simeio
In April 2015, USCIs administrative appeal office issued a precedent decision on the Matter of Simeio Solutions, LLC, stating that an H-1B employer must file an amended petition when a new labor condition application is required due to a change in the H1B employee work location.
Before Simeio, USCIS would not pursue adverse actions against H-1B beneficiaries solely based on failing to file an H1B amendment due to location change
After Simeio, strict requirements on when an amended H1B petition is required are in place.
New worksite location
When do I need to file an H1B amendment petition for location changes?
According to USCIS regulations, whenever there is a material change in the work conditions, the employer must file an amended petition for the H1B visa.
A material change is a significant change to the terms and conditions of the H1B worker’s employment status and could be related to:
- Significant raise
- Job duties change
- Job title change
- Change in work hours (moving from part-time to full-time or vice versa)
- Change in the job location
A change in worksite location typically requires a new LCA, consequently, it requires an amended H-1B petition.
Whenever a new worksite is outside of the metropolitan statistical area (MSA) covered by the LCA, the H-1B employer must file an amended H-1B petition before the worksite change goes into effect.
If you are unsure of the extent of a designated Statistical Metropolitan Area, you can look it up using this tool.
The new worksite is within normal commuting distance from the original place of employment.
There is no rigid measure of what is normal commuting distance. It could be anywhere from 20 to 50 miles.
Any worksite that is within a Metropolitan Statistical Area (MSA) is deemed to be within normal commuting distance, even if it crosses state lines.
Do all location changes require an amended petition?
Not all worksite location changes require an amendment H1B petition.
If the new workplace is located within the same MSA the employer does not need to request a new LCA. Therefore, a petition for an H1b amendment is not necessary.
However, the original LCA must be posted at the new worksite location, regardless of an entire team move or only a few team members.
An employer might need to temporarily place an H-1B worker in worksites outside the area of employment covered by the H-1B petition. For USCIS some places can be considered as “non worksite location”.
These places allow the employer to move an H-1B worker without needing to file an amended petition.
Are considered non worksite locations:
- The place where the H1b employee goes for professional development, such as seminars, educational conferences, professional training;
- The H-1B worker does not spend much time in any location. For instance, when the employee goes to a library to conduct research or goes to court to act as an expert witness.
- The work conducted by the H1B worker is “peripatetic by nature”.
USCIS defines peripatetic work as “such situations where [the employee’s] primary job is at one location but there is a need to embark on occasional travel for short periods to other locations on a casual, short-time basis, which can be recurring but not excessive.”
What is the short-term placement option?
In some circumstances, the employer might temporarily place an H-1B employee in one location outside the SMA without obtaining a new LCA. This will not constitute a material change.
How long can an employee work outside the area of intended employment?
The rule for the short-term placement indicates that these moves to a new location cannot happen for longer than 30 or 60 days, consecutive or not consecutive.
By workday, we are talking about any work done by the H1B employee in such a location. It doesn’t matter if the worker spent a full workday in such a location or worked for only one hour.
Can it be extended?
To extend the short term placement for up to 60 days, it is necessary to show that the H-1B worker is still based on the original worksite, having, for instance, a designated workplace dedicated to this particular worker, who spends significant work time at this worksite in a one-year period.
Also, the place of residency of this worker must be within the area of the permanent location and not on the area of the short-term worksite.
Are there any other requirements?
USCIS regulation requires that the new geographic area is not covered by an LCA. Meaning that, if the company has 5 employees on a worksite covered by LCA on file, it is not possible to place an additional H1b employee on the short-term placement rule.
Further, there shouldn’t be any strikes or lockouts in progress in the H-1B worker’s occupation at the short-term location.
For every day the H-1B worker is placed outside the initial area of intended work, the employer must continue to pay the prevailing wage at the permanent worksite, or the employer’s actual wage, whichever is higher.
Additionally, the employer must pay for the costs of lodging for both workdays and non-workdays and the actual cost of travel, meals, and incidental expenses.
Do changes in a home address require an H1B amendment petition?
If an H-1B worker decides to move to a new home, it is expected that the new address is informed to USCIS within 10 days of the move.
Updating your address can be done through an existing USCIS online account or by filing Form AR-11. Filing Form AR-11 online will update your address on all pending applications, petitions, or requests that you choose to include on the form.
Once you have updated your new home address to USCIS, no more paperwork is needed. You are not expected to file an H1B amended petition for an address change, since it is not considered a material change on the work conditions.
What happens if the amended H1B petition for location change is denied?
As previously mentioned, the employer doesn’t have to wait for a final decision on the request for an amendment to the H-1B visa before sending the worker to the new worksite.
Filing an H-1B amendment will not impact the original H-1B status. So, if for some reason the amendment petition for location change is denied by USCIS, the H-1B employee has to option to return to the original work location covered by the initial H-1B petition, assuming that it is possible to perform job duties in the same conditions described at the original LCA and maintaining the nonimmigrant status.
Can I appeal the H-1B amendment denial?
The good news is that you can appeal in case the USCIS denies your request for an amendment for location changes.
USCIS allows filing review applications within 33 days of the denial by the USCIS. However, refiling an amendment petition is sometimes more advantageous than appealing.
If your amended H1B petition was denied, consider contacting our experienced immigration attorney for guidance.
Would “home office” require an Amended H-1B Petition?
An H-1B worker is allowed to work from home and if that was an initial arrangement between employer and employee, the employee’s home address is already probably listed in the LCA as one area of intended employment.
If that is not the case, whether or not an employer would need to file an amended petition for an H-1B worker depends on a few circumstances.
Home is within the same MSA:
If the H-1B beneficiary house is within the metropolitan statistical area of the original workplace, working from home will not be considered as material change and an amended petition is not needed.
However, posting the original LCA is necessary.
The LCA can be posted on the bulletin board or on the front door, for instance.
The rules require that the LCA is posted for ten days before the H-1B employee starts working at the new location.
Home is outside the MSA of intended employment:
In case the place where the employer intends to work remotely is outside the MSA of the original worksite location, the employer can benefit from the short-term placement option, provided that the requisites mentioned earlier are met.
After the 30th or 60th day, if the employee continues to work from home, an amended H-1B petition is necessary to maintain the H-1B eligibility status.
What is the notice requirement due to COVID-19?
Employers are still expected to post the LCA at all new locations of intended employment for at least 10 days before the employee moves to the new worksite.
However, in light of the spread of the coronavirus, notice can be given as soon as practical and no later than 30 days after the employee starts working at the new job location.
Need more guidance on your H-1B amendment petition?
The H1B visa is competitive but has strict rules to be followed by employers and failing to apply for an amended petition when required can lead to severe consequences for both the employer and the employee.
Whether you are unsure of your need to file an amended petition or need expert help to comply with USCIS regulations, retaining an experienced immigration attorney can greatly help you tip the scales in your favor. Contact the Herman Legal Group today by calling 1-800-808-4013, or by filling out our online contact form to schedule a consultation with us.
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