On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a decision that will set precedence for future H-1B cases to come.  Specifically, the case – Matter of Simeio Solutions, LLC – decided the issue of whether a change in geographic worksite location for an H-1B worker is considered a material change and, as such, would require not only the filing of a new Labor Condition Application (“LCA”), but also an amended H-1B petition.  The United States Citizenship and Immigration Services (“USCIS”) has now issued guidance on when an amended H-1B petition will need to be filed for a change in worksite location.

Matter of Simeio Solutions, LLC

The case specifically discussed a denied H-1B case where the employee moved from the Los Angeles area to two different worksites – one in Oakland, Calif., and one in New York.  The AAO found that because the two new worksites were in different geographic locations, that required the filing of a new LCA. It also required the filing of a new H-1B petition.  Specifically, the AAO mentioned that the two new worksites were located in Metropolitan Statistical Areas (“MSAs”) different from the worksite listed in the original petition.  This, in turn, changes the prevailing wage for the location of work.  This is significant because the location of the worksite is identified in the LCA, and the prevailing wage is set based upon the MSA, which is based upon the county of the employment location.  Worksites that are not in the same MSA will typically yield prevailing wages that are different, and a new LCA should be filed.  After the AAO’s decision, the question remained as to when an H-1B petition will need to be amended if the work location changes.

USCIS Guidance on Amended H-1B Petitions

The USCIS has just issued guidance on when an amended petition must be filed.  An amended H-1B petition needs to be filed if the employee’s place of employment will be at a location outside of the MSA or the area of intended employment.  Once the amended H-1B petition is filed, the H-1B employee may immediately begin work at the new location, even while the petition is pending.

When an Amended H-1B Petition is Not Needed

An amended H-1B petition is not needed when the new worksite location is within the same MSA; however, the original LCA will need to be posted at the new work location.  An amended H-1B petition is also not necessary for short-term placements if the H-1B employee will be placed at a new job location for 30 days (or 60 days in specific situations).

Guidance on Filing Amended H-1B Petitions

If the H-1B employee changed worksite locations prior to May 21, 2015, (either before or during the issuance of the Matter of Simeio Solutions, LLC decision), an amended H-1B petition must be filed within 90 days of the USCIS alert (August 19, 2015) if one has not already been filed.

If the amended H-1B petition is denied, but the employee’s H-1B status is still valid, the H-1B employee may return to the original worksite so long as the H-1B employee will continue to maintain lawful nonimmigrant status at the worksite.

If the H-1B employee changes worksite yet again while the amended H-1B petition is pending, another amended H-1B petition may be filed.  Per a prior announcement by USCIS, premium processing service has been suspended, and therefore the petitions requesting an amendment and extension will undergo normal processing timeframes.

If an amended H-1B petition is not filed for an H-1B employee who relocates to a worksite outside the MSA by August 19, 2015, both the employer and the H-1B employee may be subject to adverse action.