Immigration Articles

When NOT to File an Amended H-1B Petition

Over the past couple of months, clients have been emailing and calling to understand when they are NOT required to file an amended petition.

For instance, one caller wanted to know what would happen if the employee returns from a project and is stationed at the corporate office for 15 days before being re-deployed to a second client location. Does the employer in this instance have to file an amended petition for the temporary reassignment to the corporate office AND the second client location?

I urge everyone to bookmark and have this Memo handy.

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf

Let me draw your attention to Page 2 of the Memo.

When a petitioner does NOT need to file an amended petition

A move within an “area of intended employment”: If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See INA section 212(n)(4); 20 CFR 655.734.

Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition.

However, the petitioner must still post the original LCA in the new work location within the same area of intended employment. For example, an H-1B employee presently authorized to work at a location within the New York City metropolitan statistical area (NYC) may not trigger the need for a new LCA if merely transferred to a new worksite in NYC, but the petitioner would still need to post the previously obtained LCA at the new work location. See 20 CFR 655.734. This is required regardless of whether an entire office moved from one location to another within NYC, or just the one H-1B employee.

Short-term placements: Under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite), without obtaining a new LCA. See 20 CFR 655.735. In these situations, the petitioner does not need to file an amended or new H-1B petition provided there are no material changes in the terms and conditions of the H-1B worker’s employment.

Non-worksite locations: If H-1B employees are only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered to be a “non-worksite” if:

o The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;

o The H-1B employees spend little time at any one location; or

o The job is “peripatetic in nature,” such as situations where their job is primarily 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 5 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.

In responding to my client, I attached the Memo and underlined the short term placement guidance that allows employees to be placed at a site for up to 30 days without the need for an amendment.

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We are a Business Immigration law firm based in metro Bridgeport area of CT. We serve clients from all over the world.

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