The Importance of Timely Filing H-1B Amendment Petitions
Before an H-1B worker can begin work at a new location that is outside the metropolitan statistical area (MSA) of the existing, approved petition and corresponding LCA, an H-1B petition requesting an amendment must be filed with USCIS. If the worker begins work prior to the required filing, he or she may be identified by immigration law and regulations as engaging in “employ[ment] without authorization,” also known as unauthorized employment.
When is an H-1B Amendment petition required?
A July 21, 2015 Policy Memorandum that was issued as guidance regarding the implementation of Matter of Simeio Solutions, LLC states that a Petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS. Once the Petitioner properly files the H-1B Amendment, the employee can begin to work at the new place of employment and does not have to wait for a final decision from USCIS before the employee can start work.
When is an H-1B Amendment NOT required?
The same Policy Memorandum discussed above discusses a few scenarios in which H-1B amendment petitions are not required:
Moving work locations within the “area of intended employment”. A new LCA is generally not required if the H-1B employee is moving to a new job location within the same area of intended employment. Unless there are changes to the terms and conditions of the H-1B employment, an Amendment petition is not needed.
Short-term placements. There are regulations that allow for a Petitioner to place an H-1B employee at a new worksite for up to 30 days, and in some cases up to 60 days, without the need for a new LCA.
Non-worksite locations. This includes a location to participate in employee developmental activity (management conferences and staff seminars), or if the job is “peripatetic in nature” meaning the job is primarily at one location but occasional travel is required for short periods of time to another location “on a casual, short-term basis.”
What if the H-1B Amendment is denied?
If the H-1B Amendment is denied, but the original H-1B petition is still valid, the H-1B employee may return to the place of employment covered by the original petition as long as the H-1B employee can maintain valid nonimmigrant status at the original place of employment and will continue to work pursuant to the terms and conditions of that valid H-1B.
What happens if I move the H-1B worker to a new location without filing an H-1B Amendment?
An H-1B worker who works at a new location that should be covered by a new LCA and required an H-1B amendment petition is engaging in unauthorized employment and has failed to maintain their H-1B status. Immigration regulations require that USCIS not approve a request to extend status if the H-1B beneficiary failed to maintain status.
If an H-1B employee starts working at a new employer or new work location before the H-1B Amendment petition is filed with USCIS and USCIS becomes aware of this issue, then the H-1B approval notice will not include an I-94. As a result, the H-1B employee will need to exit the United States and attend a visa interview for H-1B stamping.
Our office has been seeing more RFE’s and denials regarding Petitioner’s compliance with the Simeio requirements and questioning whether Petitioner did in fact file an H-1B Amendment before the H-1B employee was placed at a new work location. To avoid such RFE’s and denials, it is imperative to adequately plan for changes in worksite locations and coordinate with your attorney on filing the H-1B Amendment petition before the H-1B employee begins working at the new work location.
Note: This article was originally published here: https://www.rnlawgroup.com/the-importance-of-timely-filing-h-1b-amendment-petitions/