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.
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