We previously informed our readers and clients of the changing obligations on H-1B employers who relocate their H-1B workers to new worksites. This week, USCIS revised and reissued its policy guidance on how employers must handle H-1B worksite changes, and also extended until January 15, 2016, the “safe harbor” period for notifying of changes that have already occurred.
As background, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) decided 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. Following this decision, USCIS issued an interim policy memo that required amended petitions for workers who had changed work locations before May 21, 2015, to be filed no later than August 19, 2015.
On July 21, 2015, USCIS issued a revised and final policy memo detailing employer responsibilities related to H-1B worksite changes. The memo requires an H-1B employer to take certain actions depending on when the H-1B worksite changed or will change:
We strongly suggest that employers carefully review the current work locations for their H-1B workers for any discrepancies between the work location(s) listed on the LCA/H-1B petition and the actual work location.
In addition, because amended petitions must be filed before the worker starts at the new location, it is critical that employers identify potential work location changes as far as possible in advance of the change. Due to LCA processing times, it takes a minimum of seven business days to prepare and file an H-1B petition, and this time must be taken into account when determining the worker’s start date at the new location
As always, please contact us with any questions.
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