On April 9, 2015, the Administrative Appeal Office of USCIS issued a new precedent decision in a case entitled “Matter of Simeo Solutions LLC.” This case held that employers must file an amended H-1B petition when an H-1B beneficiary changes locations. In the past, if an employer filed a new LCA for the new location, it could potentially avoid filing an amended H-1B petition. This case eliminates that possibility and requires an amended H-1B petition when the H-1B changes the location of his or her worksite. USCIS has created an amnesty period for correcting this problem, (see below).
This new rule does not apply, however, if the change in location occurs within the same metropolitan statistical area (MSA) or within normal commuting distance. Therefore, for example, if an H-1B beneficiary moves from one location in Denver to another location in the same city, an amended H-1B petition would not be necessary. Similarly, if an H-1B beneficiary’s worksite changes from Denver to Boulder, an amended H-1B petition would not be necessary since this is considered normal commuting distance. However, in both cases the employer must repost the position at the new location.
USCIS has created an Amnesty for those H-1B beneficiaries who have changed work locations and who have not filed an amended H-1B. Companies have been given until August 19, 2015 to file an amended petition to avoid any consequences caused by a change in location without an accompanying amended petition. If an amended petition is not filed by August 19th, the H-1B beneficiary could be deemed to be out of status which would have a detrimental impact on ongoing immigration status. Also we anticipate that USCIS will be targeting this issue in conducting random or targeted site visits.
We are providing this notice to our clients and suggest that they conduct an audit to make sure that their H-1B employees are still working in the same location as listed on the original LCA, or are working in the same MSA, or within normal commuting distance of the original LCA location. If there has been a change of location, we can prepare an amended H-1B petition.
Since time is of the essence, we suggest that this audit be undertaken as quickly as possible. Please let us know if you have any questions.