New Guidance on when to file Amended H-1B Petitions

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USCIS has issued guidance describing some situations where it is required to file an amended H-1B petition. This guidance follows a ruling out of its Administrative Appeals Office on a case that we covered several weeks ago: Matter of Simeio solutions. In a blog article, we went through USCIS’ investigation and the resulting conclusion: that certain liberties taken by Simeio led, perhaps unknowingly, to violations of the H-1B program. Though the company later gave effort to correct their errors and begin compliance, USCIS revoked the concerned aliens’ H-1B visas. It seems reasonable to conclude that the guidance is intended to prevent confusion that may have led to Simeio’s violations.

In the referenced case, USCIS and State Department investigators discovered discrepancies between information provided on petitions, obtained in consular interviews, and received from direct communication with Simeio employees. These discrepancies eventually led the investigators to find that some Simeio H-1B employees were working in locations not specified in their most recent petitions–and that this fact caused them to be paid less than was required. H-1B employees must be paid no lower than their assigned “prevailing wage,” and there may be a different prevailing wage for each class of occupation in each Metropolitan Statistical Area (MSA). The MSAs from which these H-1B employees were in fact working had higher prevailing wages for their occupations than the MSAs described on their most recent H-1B petitions. Because they were paid near or at their old MSA’s prevailing wages, their switches in worksite were not allowed without certain minimum increases in pay. However, the switches happened without sufficient increases.

The new guidance has been issued in part to prevent situations like above. It can be considered a reminder of current policy along with a clarification of USCIS’ interpretation of it. The logic of the guidance is as follows:

  1. Regulations already state that when an H-1B employee’s employment situation significantly or “materially” changes, his or her employer is required to submit an amended H-1B petition (or an altogether new petition if preferred).
  2. Regulations also state that any change that may affect an H-1B holder’s continued eligibility for H-1B status is considered a “material change.”
  3. As is obvious, any change of worksites to a geographic region not covered by the original Labor Condition Application (LCA) and its resulting prevailing wage requires a new LCA with a new prevailing wage determination.
  4. USCIS now maintains that any change that requires a new LCA is considered a change that may affect continued eligibility for H-1B status.
  5. Thus, it is a “material change” when an H-1B employee changes worksites to a location not covered by his or her most recent approved LCA. So, an amended or new H-1B petition must be sent whenever this occurs. Simply filing a new LCA is insufficient. However, the change in location may occur as soon as the new or amended H-1B petition is received by USCIS; it is not necessary to wait for approval. But if a denial is sent, the employee must promptly return to the original worksite or forfeit the visa.

For further clarification, the guidance also lists situations where it is not necessary to submit an amended petition. The following are the most likely to be relevant:

  • A prevailing wage is one that is meant to be representative of some class of occupation in a particular MSA. So, any move within an MSA would not require a new LCA. Thus, such a move does not itself require an additional petition.
  • Temporary job placements (30 days or less) in a location outside the original MSA do not require new LCAs. In some cases, this can be extended to 60 days. See (c) of 20 CFR 655.735.
  • Movement to “non-worksite locations” does not itself require new LCAs. Such locations may include: places where employees engage in developmental activities (like seminars and conferences) and the several places an employee that spends little time at any one location may visit.

There are two final points to consider. First, any H-1B employee that is now working in (or was on May 21st already in the process of moving to) an MSA not covered by the LCA submitted as part of his or her most recent H-1B petition must file a new or amended petition by August 19th 2015. And second, amended H-1B petitions may be submitted while other related petitions are still pending. USCIS receipt notices of the petitions in question should be included with the amended petition in such an event.