In May 2015, the USCIS issued draft guidance following a precedent decision in Matter or Simeio Solutions, LLC (26 I&N Dec. 542 (AAO 2015)) on when to file amended H-1B petitions. However, in 2020 following the IT Serve Alliance case, the USCIS entered into a settlement agreement where it agreed to set aside certain policies that were implemented following the Simeio decision. While the various aspects of the settlement agreement can be found elsewhere, it amounted to the USCIS setting aside two important, but significant policy memoranda:

  • Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements[1] (Reference AFM Chapter 31.3(g)(16)), HQ 70/6.2.8 (AD 10-24), issued January 8, 2010; and
  • Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party
    Worksites[2], PM-602-0157, issued February 22, 2018.2

In fact, the Service issued a policy memo instructing adjudicating officers to ignore these two memos and over a decade of USCIS decisions and policies with respect to what constitutes an employer-employee relationship for H-1B purposes. Significantly, the issue of “material change” as updated[3] by Simeio, was set aside.

The regulations at 8 CFR § 214.2(h)(2)(i)(E) specifies when to file an amended H-1B petition:

Amended or new petition. The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training, or the alien’s eligibility as specified in the original approved petition.

The 2015 draft guidance referenced earlier is now part of archived content on the USCIS website. However, there are portions of the memo that may still offer useful guidance when it comes to “when you do NOT need to file an H-1B amendment” and certain other guidance that may still be relevant.

Let us consider the following scenarios as detailed in the Memo:

  •  A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
  • Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
  • Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
    • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars
    • The H-1B employees spend little time at any one location; or
    • The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.

Separately, the Department of Labor provides guidance on the Notice requirement when an employee begins working at a location not contemplated by the original filing. The DOL guidance states:

Notice must be given to the workers at the new worksite in the manner described above. The posting must be accomplished on or before the date the H-1B worker begins work.

There are at least two additional scenarios that the DOL mentions when it comes to deciding when to file LCAs:

Must the employer have an LCA on file for each place of employment?

Yes. The employer must have an LCA on file for each place of employment, with the exception of the short-term placement option (see WH Fact Sheet #62K). By filing the LCA, the employer establishes the prevailing wage for the worksite, provides notice to workers, and specifies the scope of the strike/lockout prohibition.

What is the geographic area of intended employment?

The geographic area of intended employment means the area within normal commuting distance of the place (address) of employment, or worksite, where the H-1B nonimmigrant is or will be employed.

While the USCIS may be somewhat hamstrung following IT Serve, it would seem a bit of a stretch to use this to never file an amended petition. This would be true even if the employer continues to meet at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors under 8 CFR § 214.2(h)(4)(ii). We have seen this in cases where the employee’s role has undergone significant changes. This is true in the IT field where roles are fungible within a given project. In other words, “the beneficiary is no longer employed by the petitioner in the capacity specified in the petition.” This could form the basis for revocation under 8 CFR § 214.2(h)(11)(iii)(A).

Take also for instance the scenario where the USCIS attempts to conduct a site visit to verify employment. The administrative site visit and verification program  was launched in July 2009 to allow immigration officers in the Fraud Detection and National Security Directorate (FDNS) to make unannounced site visits to collect information as part of a compliance review. While the worst-case scenario involving a failed site visit is a criminal investigation, in most cases, the USCIS issues a Notice of Intent to Revoke. This can be problematic if the employee is working on an important project that could face significant disruption if employment is terminated.

It is best to discuss with our office the circumstances and scenarios that trigger the need to file an amended petition before the employee begins work at a new work location especially if it is outside the MSA or the originally intended area of employment. Remember, the best rule in compliance is one that puts the safety of your organization first.

[1] Provided guidance on the requirement that a petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period

[2] Provided guidance relating to H-1B petitions filed for workers who would be employed at one or more third-party worksites. It was intended to be read together with the 2010 memorandum and as a complement to that policy.

[3] Simeio expanded the definition to include changes in work location