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New USCIS Guidance Requires Amended/New H-1B Filings When Employees Change Worksites
July 27, 2015
The USCIS published a new, final guidance on July 21, 2015 clarifying when employers must file amended or new H-1B petitions for their H-1B employees who move work locations. This will affect thousands of employees, including those whose jobs are project-driven (ex: IT professionals and consultants) and those who move to attend to regional needs and markets (ex: salespeople). It can cost employers thousands of dollars in attorneys and filing fees to file these amended/new H-1B petitions each time there is a qualifying move, which can, in turn, affect employers’ profitability and project staffing decisions.
The new guidance generally requires employers to file a new/amended H-1B petition each time an employee is going to move outside the area of intended employment specified in the initial H-1B filing. Once the petition is filed, the employee can start working at the new worksite, even while the petition is pending. If the move is within the same area of intended employment specified in the initial H-1B petition, then a new petition is not required. However, the original Labor Condition Application certified for the initial petition has to be posted at the new worksite.
There are a couple of exceptions to this general rule. Generally, if the employee is only going to be at the new worksite for up to 60 days and will remain based out of the prior worksite, then a new/amended H-1B petition is not required. In addition, if the employee is going to a “non-worksite”, then a new/amended petition is not required. A “non-worksite” is one where: (1) the employee goes for developmental activities (ex: trainings), (2) the employee spends little time at any one location, or (3) the employee’s job is primarily at one location but s/he infrequently travels to other locations for casual, brief visits that can be recurring but not excessive (ex: up to 10 consecutive workdays per visit).
If an employer does not file a new/amended H-1B petition after an employee’s qualifying move, the employer will be in violation of immigration laws and at risk of fines, penalties and possibly debarment from sponsoring and employing any foreign national workers. The employee will be out of status and will be at risk of deportation.
The USCIS allows for a safe harbor period to come into compliance with this new guidance. There are three time periods to consider for the safe harbor provisions. First, if the employee moved on or before April 9, 2015, the USCIS will generally not pursue any adverse action against the employer or employee if they fail to file an amended/new H-1B petition. If, however, to be safe, the employer decides to file a new/amended H-1B petition, it must do so by January 15, 2016.
Second, if the employee moved worksites between April 9, 2015 and August 18, 2015, then the employer must file a new/amended H-1B petition by January 15, 2016, or else the employer and employee are at risk of adverse actions as described above.
Third, if the employee is going to move worksites on or after August 19, 2015, then the employer must file a new/amended H-1B petition before the employee starts at the new worksite, or else the employer and employee are at risk of adverse actions as described above.
A practice tip – Employers should do their best to identify all truly possible worksites at the time of filing an H-1B petition, and include all those worksites on the Labor Condition Application and H-1B paperwork, to avoid this new/amended filling requirement later. However, employers should be aware that this could increase the prevailing wage that employers must pay to the H-1B employees, if they include worksites in areas of the country where prevailing ages are generally higher (ex: regions surrounding popular metropolitan areas).
If you have any questions about this new guidance or other business immigration-related question, please contact Berin S. Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2015 Posternak Blankstein & Lund LLP. All rights reserved.