USCIS Imposes New Obligation on H-1B Employers; Filing Deadline Looms

USCIS has imposed a new obligation on H-1B employers who relocate their H-1B workers to new worksites, and has imposed a filing deadline to update H-1B petitions for relocations that have already occurred.

In a recent decision, the USCIS Administrative Appeals Office (AAO) held that the change of an H-1B worker’s worksite that requires the employer to obtain a new Labor Condition Application (LCA) is a “material change” in the terms of employment that requires the employer to amend the worker’s existing H-1B petition.

While this is a departure from long-standing, albeit unofficial, agency policy that a change in work location was not a “material change” requiring an amendment, USCIS had been hinting in recent years that this policy was in the crosshairs.  Despite the existence of that generally accepted guidance, we began routinely advising clients to file amendments in this situation long before this recent AAO decision.

Critically, USCIS has announced that it will apply this new obligation retroactively. This means that employers who have already assigned H-1B workers to new worksites will have to file a petition to amend the workers’ H-1B status to reflect the change in work location, even if the change occurred several months ago.

According to recently published USCIS guidance, employers must file amended petitions for workers who changed work locations prior to May 21, 2015, no later than August 19, 2015.  Failure to file the required amendment will subject the employer to penalties for non-compliance with the H-1B regulations and, critically, will result in the worker being in out of lawful H-1B status and subject to adverse action, such as denial of a subsequent request for change of status or extension of stay or, in the worst case, removal from the United States.

We strongly suggest that employers carefully review the current work locations for their H-1B workers and immediately seek to resolve any discrepancies between the work location listed on the LCA and the actual work location.

As always, please contact us with any questions.