Do I Have to File an H-1B Amendment for My Employee Who Is Changing Worksite Locations?
Earlier this year USCIS clarified when an H-1B amendment is required when an H-1B employee changes worksite locations.
In the critical portion of its decision, Matter of Simeio Solutions, LLC, the USCIS Administrative Appeals Office held that employers are required to file an H-1B amendment when the H-1B employee changes his or her place of employment to a worksite location outside of the Metropolitan Statistical Area (MSA). The Simeio holding took effect on August 19, 2015.
USCIS considers the change in the worksite location outside the MSA to be material change of the Labor Condition Application (LCA). As a prerequisite to employing an H-1B worker, the employer must submit a receive a certified LCA from the Department of Labor, which ensures that employers pay H-1B employees the higher of either the prevailing wage for the occupational classification in the “area of employment” or the actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services in accordance with federal immigration law.
USCIS states, “[t]he LCA certification process is intended to protect United States workers’ wages by eliminating economic incentives or advantages in hiring temporary foreign workers. It also ensures that wages paid to H-1B employees are in line with the wages paid by similarly situated workers in their same geographical area.”
For example the average annual base salary of a software engineer with a Bachelor’s degree and one to three years of experience working in San Jose, California will be higher than a similarly experienced software engineer working in Dubuque, Iowa. The MSA requirement portion of the LCA takes this economic reality into account.
The Simeio decision sets forth a logical requirement to ensure the purposes of the Labor Condition Application continue to be achieved no matter where the H-1B employee works. H-1B employers must file an amended H-1B petition for their H-1B employees who change their place of employment to a worksite location outside of MSA provided in the existing approved H-1B petition.
Transferring employees may begin working at the new job location as soon as the amendment is filed and they do not have to wait for the amendment to be approved. Also, USCIS has stated that H-1B employers are not required to file an amendment if the new worksite is within the same MSA; the H-1B employee will only be working at the new location for a short period of time (30-60 days); or if the employee is going to work at non-worksite location for a seminar, conference, or short off-site assignment.
Employers with H-1B employers should consult an immigration attorney to decide whether filing an H-1B amendment is required to accommodate a change of work location for their H-1B employee.