In response to a recent precedent decision (Matter of Simeio Solutions, LLC (“Simeio”)), USCIS issued guidance on July 21, 2015, advising employers of the actions required for future worksite changes and how to handle such changes that have already occurred.

If an H-1B employee’s worksite will change, the employer must take action before the employee moves to the new worksite. In Simeio, it was held that if an H-1B employee’s worksite will change to a new area of employment, the employer must file both a new LCA and an amended H-1B visa petition before the H-1B worker changes worksites. Prior to Simeio, if an H-1B employee moved to a new area of employment (not covered by an existing, approved H-1B visa petition), USCIS would not necessarily revoke or deny the petition solely based upon a failure to file an amended or new petition. In fact, there was an old legacy INS letter that indicated that amended petitions could be filed after the move!

The July 21, 2015 USCIS Policy Memorandum 602-0120 serves as guidance on when to file an amended or new H-1B petition as a result of the Simeio decision and how to handle moves that happened before Simeio as well as moves that occurred post Simeio and before the guidance was issued.

What does this mean to employers?

Action required if the new location is in a different area of employment:

It is important to understand what is meant by “area of employment”. Under Simeio, the focus is on the Metropolitan Statistical Area (MSA). An MSA is a geographic area delineated by the Office of Management and Budget (OMB) for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. An MSA contains a core urban area of 50,000 or more population. Each MSA consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measured by commuting to work) with the urban core.

If the new worksite is in a different area of employment from the original worksite, then the employer must file both the new LCA and the amended or new H-1B visa petition before the H-1B worker changes worksites. Once the H-1B visa petition is filed, the H-1B employee can move to the new worksite while it is pending. If the amended petition is denied, the employer would have the “option” of returning the employee to the prior location so long as that location and petition were still valid.

Action required if new location is in the same area of employment:

If the new worksite is in the same area of employment, a new LCA and new H-1B visa petition are not required, but the employer must post the original LCA notice at the new worksite before the employee commences work at the new location. For example, if an H-1B employee presently authorized to work at the company’s facility located in San Francisco (i.e., San Francisco-Oakland-Hayward Metropolitan Statistical Area), will be transferring to another company worksite (or even a home office) in Oakland, such a move by itself does not trigger the need for a new LCA and H-1B petition, provided that the terms and conditions of the original H-1B visa petition and its LCA remain valid. In this situation, the LCA notice needs to be reposted in two conspicuous locations at the new worksite before the individual moves. Similarly, if the entire company moves from one location in San Francisco to a new office in San Francisco, all LCAs for the company must be reposted. Posting of notice is required regardless of whether an entire office moves from one location to another within San Francisco, or just one H-1B employee. Please note that these rules do apply to home office worksites for telecommuters, such that a change of home address can trigger the need to file a new LCA and H-1B petition.

Carve out for temporary placements and non-worksites:

The decision did not change the existing “short term placement” rule. This provides that under certain circumstances, an employer may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at his/her “usual” worksite), without obtaining a new LCA. In these situations, the employer does not need to file an amended or new H-1B petition nor post an existing LCA, provided there are no material changes in the terms and conditions of the H-1B worker’s employment.

Another exception exists if the H-1B employees are only going to a non-worksite location (such as conferences and seminars related to employee development, occasional travel for short periods to other locations, or where employees spend little time at any one location). If there are no material changes in the authorized employment, the employer does not need to file an amended or new H-1B petition.

What is the impact on the employee if the employer does not follow this guidance?

USCIS has indicated that where an employer does not follow the guidance to either file an amended or new petition or repost an LCA, that it may be found that the foreign national employee is no longer maintaining nonimmigrant status in the United States. This could have consequences to the ability to, for example, change or extend status.

What about worksite changes that occurred before USCIS issued its guidance?

The Policy Memorandum sets forth how USCIS will apply the Simeio holding going forward, as follows:

• Worksite changes that occurred on or before April 9, 2015: If an H-1B employee moved to a new place of employment not covered by an existing approved H-1B petition by this date, then the employer may choose to file an amended or new petition by January 15, 2016. If the move is in the same MSA and all other aspects of the H-1B visa petition remain the same, then the employer should have reposted the LCA notice; if this was not done, LCA posting should be completed as soon as possible.
• Worksite changes that occurred between April 9, 2015 and August 19, 2015: If an H-1B employee moved to a new place of employment not covered by an existing approved H-1B petition between these dates, then the employer must file an amended or new petition by January 15, 2016. Filing by this deadline will provide employers with “safe harbor” and forgive the filing of such petitions after the move. If the move is in the same MSA and all other aspects of the H-1B visa petition remain the same, then the employer should repost the LCA notice.
• After August 19, 2015: If an H-1B employee will be moving to a new place of employment not covered by the existing approved H-1B petition and its LCA after this date, then the employer must file an amended or new petition before the H-1B employee starts working at the new worksite. If the new worksite is in the same MSA and all other aspects of the H-1B visa petition remain the same, then the employer must repost the LCA notice at the new worksite before the employee moves.

Please contact our office if you would like to discuss these changes. We will be sending memos out to our corporate clients outlining these policy changes and asking them to contact us regarding specific cases and moves. If you have questions in the meantime regarding this memo or are not a J&H client but would like to discuss this policy change, please contact our office. The bottom line is to notify counsel if an H-1B employee has moved or will be moving to another work location.