On April 9, 2015, the USCIS Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers are required to file amended H-1B petitions when H-1B workers move to jobsites that were not listed on the original H-1B petition and when such a move represents a material change in the terms of employment.

Is this a new USCIS policy?

Federal Regulations require that an amended H-1B petition must be filed when there are “material changes” in the H-1B worker’s terms and conditions of employment. Up until the Simeio Solutions decision, the question of whether a job location change requires filing an amended H-1B petition did not have a definitive answer. This was largely due to the different sets of regulations governing Labor Condition Applications and H-1B petitions, as well as prior conflicting correspondence and liaison meeting discussions with USCIS. This AAO decision is a precedent decision, which means that it is binding on government adjudicators.

What is the new AAO decision saying about H-1B job site changes?

The Simeio Solutions decision can best be summarized as follows:

  • Changing the H-1B worker’s place of employment to a worksite that requires employers to submit a new Labor Condition Application may affect the worker’s eligibility for H-1B status and is considered a material change in the terms and conditions of employment;
  • Material changes in the H-1B context require filing an amended H-1B petition along with the respective Labor Condition Application.

Employers must file amended H-1B petitions if the new worksite location is outside of the metropolitan statistical area (MSA) or the area of intended employment (area within normal commuting distance of the employment location) listed on the original, approved H-1B petition. An amended petition must be filed regardless of whether a new Labor Condition Application has already been approved and posted at the new worksite.

Are there exceptions to this requirement?

Not every worksite location change requires filing an amended H-1B petition as long as it meets any of the following conditions:

  • Same MSA: If the new worksite is located within the same MSA or area of intended employment then there is no need to file an amended H-1B petition. The employer would still be required to post the existing Labor Condition Application at the new location.
  • Short term move: There is no need to file an amended H-1B petition in certain situations where the worker is places at a new job location for up to 30 days (60 days where the worker remains based at the original location).
  • Non-worksite locations: No amended H-1B petition is required for H-1B workers who are visiting non worksite locations, including the following:
    • Visiting a new location for training, conferences or seminars, or
    • Spending little time at any one location, or
    • Peripatetic jobs: Where the worker’s primary job is at one location but the nature of the job requires occasional travel of short duration to other work locations, there is no need to file an amended H-1B petition. The U.S. Department of Labor defines such types of job location changes as being of “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).”

What should employers with existing H-1B workers do to remain in compliance with the new AAO decision?

Those H-1B employers determine that they are required to file amended H-1B petitions under the new standards may do so until August 19, 2015 and USCIS will not take adverse action against them. H-1B employers who are required to file amended H-1B petitions but do not do so by August 19, 2015 will be considered out of compliance and their H-1B workers who have started working at new job locations would be in violation of status.

What happens if the amended H-1B petitions is denied for some reason?

As long as the original H-1B is valid at the time the amended petition is denied, the H-1B worker may be able to continue working at the initial worksite under the terms and conditions of the original H-1B petition.

What if the job location changes again while the amended petition is pending?

If the worksite location changes again after an amended H-1B petition is filed but is currently pending, an employer may file another amended petition to reflect the new work location. The worker may move to the new worksite upon filing the new petition. Bear in mind that each of the filed amended H-1B petitions must eventually be approved. The denial of any H-1B petition in a chain of several pending cases will result in all successive amendment petitions to be denied as well.