USCIS Issues Final Guidance on H-1B Worksite Changes With New Filing Deadline

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:

• Change On or Before April 9, 2015 – If the H-1B worksite changed on or before April 9, 2015, the employer may choose to file an amended petition before January 15, 2016.  If the employer does not file a new petition, USCIS will generally not take any new adverse action, such as revocation of the current petition or denial of an extension, due to the failure to file an amendment.  However, USCIS will continue to pursue any adverse actions commenced prior to July 21, 2015.
• Change Between April 9 and August 18, 2015 – If the H-1B worksite changes between April 9 and August 18, 2015, the employer must file an amended petition before January 15, 2016.  If the employer does not file an amended petition within this “safe harbor” period, the employer will be out of compliance with the H-1B regulations, which could result in revocation of the current petition among other penalties for noncompliance.  In addition, the H-1B worker will not be maintaining lawful immigration status and will be subject to adverse action.
• Change On or After August 19, 2015 – If the H-1B worksite changes on or after August 19, 2015, the employer must file an amended petition BEFORE the H-1B worker starts working at the new worksite.  Again, 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 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.