On Aug 18 2015

USCIS Requires Filing of New LCA and H-1B Petition for Employees Working in New Location

The Administrative Appeals Office reached a decision on April 9, 2015 that has important implications for employers of persons in H-1B status.

The decision, Matter of Simeio Solutions, LLC, held that changes in an H-1B employee’s worksite which place them outside the geographic area listed on the Labor Condition Application (LCA) constitutes a “material change” in the terms and conditions of employment, and requires filing of a new LCA and either a new or amended H-1B petition. Affected employers must file a new LCA and H-1B petition as soon as possible, but no later than January 15, 2016 in order to remain compliant, and to ensure H-1B employees maintain status.

As a consequence of this precedential decision, USCIS may now revoke an H-1B petition where H-1B employees are found to be working in a geographic area outside of the one originally contemplated in the previously approved LCA. USCIS recently released explicit guidance for employers who must rectify inconsistencies in the H-1B employee’s worksite, outlined below:

Employers whose H-1B employees relocated to a new geographic area after April 9, 2015 and prior to August 19, 2015, must file a new or amended H-1B petition and corresponding LCA no later than January 15, 2016. If the new or amended petition is filed before the January 15 deadline, the petitioner will be afforded “Safe Harbor” from adverse action and deemed compliant by USCIS. Once the new LCA and H-1B petition are filed with USCIS, the employee may resume working at the new location so long as the previously approved LCA is properly posted at the new worksite. However failure to file a new or amended petition will subject the employer to revocation of the existing petition, and the H-1B employee will fall out of status.

Employers whose H-1B employees move to a new geographic area on or after August 19, 2015 must file a new or amended petition immediately, and the employee may not begin working at the new location until a new or amended petition with corresponding LCA has been filed with USCIS.

Finally, employers whose H-1B employees moved to a new geographic area on or before April 9, 2015 (before Matter of Simeio Solutions, LLC was decided) have been advised that USCIS will generally refrain from pursuing adverse action against the employer (ie. denial or revocation of a petition) based solely on failure to file a new or amended petition reflecting the change. Nevertheless, employers in this category may elect to file a new or amended petition consistent with the employee’s new location before January 15, 2016, and the petition will be considered timely.

If you have questions or concerns about these requirements, or are unsure whether one of your employees is outside of the designated geographic area, please contact your Klasko Law attorney to ensure compliance with this new rule.