RELOCATION OF H-1B EMPLOYEE REQUIRES EMPLOYER ACTION
USCIS has issued a new policy regarding relocation of an H-1B employee. In short, and in general, an employer must file an amended petition when an H-1B employee is transferred to a new worksite. Failure to follow this new policy can result in the employee’s status violation and in ability to extend status. It also can raise liability issues for the employer. Thus, it is critical that the H-1B employer comply with the new directive. Below are some important dates, with the action the employer must take:
If the employee was assigned to a new location on or before April 9, 2015, the employer can choose to file an amended or new petition. If the employer opts not to file a new or amended petition, USCIS will not pursue revocation or denial. In other words, no action is needed until a petition is required to extend status prior to expiration of the current petition.
If the employee was assigned to a new location between April 10, 2015, and August 19, 2015, the employer must file an amended petition by January 15, 2016, and USCIS will consider the petition timely filed.
If the employee will be assigned to a new location after August 19, 2015, the employer must file before the employee is transferred an amended petition to reflect a change in work location.
If you have relocated any current H-1B employees, or plan to relocate H-1B employees, please contact our office immediately so we can assist you to comply with the USCIS policy. We suggest you conduct an internal audit by reviewing the Labor Condition Application (LCA) associated with each H-1B employee and confirm the employee is at the location indicated on the LCA. We will be happy to assist you with an LCA audit or to provide further guidance on how to audit your H-1B files for continued compliance.
Bear in mind, not every worksite relocation will require an amended petition. For example, if the new location is within the same MSA as the original location, and the job has not changed materially, an amended petition might not be necessary. Short-term training at a different location, likewise, will not be considered a change in worksite location.
For these and other reasons, we strongly urge you to contact one of our attorneys for a full and proper assessment.