USCIS has issued final guidance as to when to file a new or amended H1B petition when there is a change in the location of work being performed by the H1B candidate. This guidance was provided to help eliminate filing uncertainties felt by H1B employers.
Potential H1B workers and H1B employers should understand that USCIS has mandated some key provisions regarding the timeline of when to file a new or amended H1B petition accompanied by the steps that the H1B employers should take to remain in compliance. Understanding these components will be essential in ensuring the best results possible when transferring the work location of H1B employees.
Final USCIS Guidance: The Key Components
USCIS has issued this final guidance in order to eliminate any uncertainty surrounding when to file an amended H1B Petition. Specifically, they outline what actions are to be taken for the scenarios presented below:
- When there has been a change in location of where work is being performed on or after August 19, 2015.
- When there is an H1B change in the location of work after April 9, 2015 but prior to August 19, 2015.
- When the location of work changed before or on April 9, 2015, and;
- When an amended petition will not be required.
For the benefit of employers and employees, this article will elaborate upon the scenarios listed above in addition to other key considerations.
When Are The H1B Amended Petitions Required To Be Filed?
Prospective employers are required to file an amended petition if the H1B worker is being moved to a location that is, “outside the area of intended employment” as defined by the current and approved H1B petition. If the location of the work being performed changes on or after August 19, 2015, then the amended or new petition must be filed before the actual change of address occurs.
If the change in location occurred after April 9, 2015 but before August 19, 2015, then the new or amended petition must be filed no later than January 15, 2016. Failure to file by this day could result in both the petitioner and employee to fall out of compliance with DHS.
If the change in location occurred prior to April 9, 2015 then the petitioner may determine whether or not to file an amended petition by January 15, 2016. However in this scenario, a failure to file an amended petition by the date specified above will not necessarily give cause to pursue revocation or denial.
It is important to remember that in all instances where a change of location has occurred after April 9, 2015 that an amended H1B petition is required. This requirement holds true even if a new LCA has already been certified and is posted at the new location in accordance with current Department of Labor Guidelines.
H1B Change In Work Location Occurs On or After August 19, 2015
USCIS states that an amended H1B petition must be filed if a change in location occurs on or after August 19, 2015 before they can begin work at a new location that is not covered by an approved H1B petition. Failure to follow these directions could result in adverse actions being taken against employee/employer including a revocation of the H1B visa. A key component of these directions to consider is that an employee may begin work upon proper filing of the petition, but does not have to wait for actual approval to be issued.
H1B Change In Work Location That Occurs After April 9, 2016, But Before August 19, 2015
If a change of location has occurred after the date of April 9, 2015 but before August 19, 2015, the petitioner must file a new or amended H1B petition by January 15, 2016. Failure to satisfy this will result in the petitioner falling out of compliance with Department of Homeland Security (DHS) regulations. This may result in the current H1B petition approval becoming subject to a notice of intent to revoke. Additionally, the H1B employee may be found to not be properly maintaining his/her H1B status.
H1B Change of Work Location Occurred Prior To April 9, 2015
If a change of location has occurred prior to the date of April 9, 2015, then the H1B petitioner/employer may choose to file an amended H1B petition by January 15, 2016. Unlike with the previous two circumstances, USCIS will generally not take adverse action based solely upon failure to file an amended petition which outlines the change in location. However, it is important for employers to remember that discretion of pursuing any action remains with USCIS and therefore it is advised that employers do file an amended petition for the purpose of avoiding any potential negative repercussions in the future.
Additional Considerations
USCIS will generally not pursue action against employers for not filing an amended petition in situations when the change in location occurred prior to April 9, 2015. However, any outstanding items such as notices of intent to revoke, requests for evidence, revocation, notice of intent to deny or denials that have been issued prior to July 21, 2015 will continue to remain in effect and must be responded to by the prospective employer accordingly.
H1B Change of address: Next Steps For You
If your organization is in need of adjusting the locations for employees currently maintaining H1B status, contact KPPB Law prior to taking any action. Our highly experienced immigration attorneys have managed thousands of H1B visa cases and will be able to discern what future actions are needed. Do not risk endangering the status of your personnel, contact our firm for a consultation where we can advise you on the appropriate actions to take and provide you with the services needed to ensure an error-free transition process.
Beeraj Patel, Esq.
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