The U.S. Citizenship & Immigration Services (USCIS) has issued updated guidance regarding the policies for when an employer must file a new or amended H-1B petition after an H-1B employee changes physical worksites. This new guidance also provides a period of time for employers to begin complying before adverse action is taken against an employer or employee for failing to file an amendment.
When An Employer Must File An Amended H-1B Petition
The Employer must file an amended H-1B petition whenever an H-1B employee changes or is going to change his/her place of employment to a worksite location outside of the current metropolitan statistical area (MSA) or "area of intended employment" covered by the existing approved H-1B petition, even if a new Labor Condition Application (LCA) is already certified and posted at the new location. Once the amendment is filed, the H-1B employee can begin working at the new location (even prior to receiving the approval of the amended petition).
Timeframe For Filing The Amended H-1B Petition
If the changing of the H-1B employee's worksite occurred on or before August 19, 2015, employers should file an amended petition before January 15, 2016. For future changes in work location after August 19, 2015, employers must file and amended H-1B petition before the employee moves to the new work location.
If an amended petition is not filed, the employer will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, the H-1B employee would not be maintaining nonimmigrant status and would also be subject to adverse action.
Therefore employers should be aware of the reassignment or changes in work location of an H-1B employee and coordinate closely with immigration counsel with regard to filing the necessary H-1B amended petitions in accordance with the new USCIS guidance.
As always, should you have any questions, please don't hesitate to contact our office.