Deadline for Filing
Employers must file an H-1B Amendment when there is a change in work location from one Metropolitan Statistical Area (or MSA) to another.
USCIS had issued Interim Guidance requiring that all Amended Petitions be filed by August 19, 2015. They have now extended that date to January 15, 2016 (deadline for filing) with some exceptions as noted below under “Compliance.”
For changes in employment location within the same MSA, the employer is only required to post the existing LCA at the new work location. There is no need for a new LCA or H-1B Amendment.
As explained in an earlier GLF Newsletter on this subject, “Short-Term Placements” and “Non-worksite Locations” do not require a new LCA or Amended Petitions.
Compliance with Simeio Solutions Decision
For compliance with the Simeio Solutions Decision, the following dates, action items and GLF Recommendations, are critical:
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Employee was moved to a new work location in a different MSA prior to April 9, 2015
Action Required: Employer MAY file an Amended Petition by January 15, 2016
USCIS will not issues denials or revocations after July 21, 2015, on cases where the work location change happened before April 9, 2015, for failure to file an Amended petition;
And
Notice of Intent to Revoke, Request for Evidence (RFE), Notice of Intent to Deny or Denials issued prior to July 21, 2015, for failure to file an Amended petition, stands and must be responded.
GLF Recommendations:
i. Although Amendment is not Mandatory for work location changes that occurred prior to April 9, 2015, GLF recommends filing Amended petitions proactively before January 15, 2016
ii. If USCIS has issued a Notice of Intent to Revoke, RFE or a Notice of Intent to Deny and the response period is open, GLF recommends filing an Amended Petition and including proof of the Amended filing with the response
iii. Note: A pending petition may not be Amended but a separate Amended Petition must be filed reflecting material changes
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Employee was moved to a new work location in a different MSA after April 9, 2015 but before August 19, 2015
Action Required:Employer MUST file an Amended Petition by January 15, 2016
GLF Recommendations:
i. It is advisable to file Amended Petition sooner than January 15, 2016, if possible, to avoid possibility of denials and/or revocations.
ii. If USCIS has issued a Notice of Intent to Revoke, RFE or a Notice of Intent to Deny and the response period is open, GLF recommends filing an Amended Petition and including proof of the Amended filing with the response
iii. Note: A pending petition may not be Amended but a separate Amended Petition must be filed reflecting material changes
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Employee is moving to a new work location in a different MSA after August 19, 2015
Action Required:
Employer MUST file Amended Petition before the employee starts work at the new location and NOT wait until January 15, 2016
Employers who do not comply with the above deadlines will be deemed to be out of compliance with the DHS regulations.
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OTHER
1. If the Amended Petition is Denied, Employee may return to the place of employment covered by the original petition
2. If there is again a change in employment while the Amended Petition is pending, Employer may file another Amended Petition reflecting the latest work location.