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Employers to file amended LCAs and H-1B petitions if H-1B work locations change

The USCIS Administrative Appellate Office issued a precedent decision holding that an amended H-1B petition is required whenever the work location of an H-1B worker changes. An H-1B visa is a nonimmigrant visa classification that allows a U.S. employer to temporarily employ a foreign worker in a specialty occupation that requires at minimum a baccalaureate degree and specialized knowledge in a field.

The new AAO decision, In the Matter of Simeio Solutions LLC, holds that if a new Labor Condition Application (LCA) is filed for an H-1B employee to reflect a change in work location that is outside the metropolitan statistical area of the original worksite or worksites set forth on the LCA and in the original H-1B petition, then the H-1B employer must now file an amended petition with a new LCA with USCIS for that worker.

The requirement of an amended petition only applies when the work location is in a different MSA, or metropolitan statistical area, from the original work location. Therefore, an amended petition is not necessary when a worker is moved to a different worksite within the same MSA, although the original LCA must still be posted at the new worksite. Similarly, an amended petition is not needed when a worker is simply traveling to a non-worksite location, such as for a training event. In some circumstances, a worker may also be placed at a new worksite, even in a different MSA, for a short-term placement without the need for an amended petition. This applies when the original worksite is still the employee’s base, but the worker is moved to a different worksite for less than 30 days, or in some cases, 60 days.

Subsequent to the AAO decision, which USCIS considers to apply retroactively, USCIS issued guidance to employers, stating that employers who move H-1B employees to new worksites prior to the issuance of the decision have until August 19, 2015 to file amended petitions.

Stewart Rabinowitz, Board Certified, Immigration and Nationality Law – Texas Board of Legal Specialization. Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses, families, and individuals.

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