News

On May 26, 2015, USCIS temporarily suspended premium processing for all H-1B extensions of stay petitions until July 27, 2015. This includes both H-1B extensions with the same employer and H-1B transfers to work for a new employer.

Premium processing remains available for H-1B petitions subject to the cap (i.e. lottery cases) and cap exempt petitions, as long as the petition is requesting 1) a change of nonimmigrant visa status, or 2) consular processing. Premium processing also remains available for H-1B amendments that do not request an extension of stay.

The temporary suspension will allow USCIS to implement in a timely manner the new rule that allows Employment Authorization for H-4 Spouses. The rule went into effect on May 26, and USCIS anticipated receiving an extremely high volume of these applications. This new rule was discussed in last month’s article.

When an employer must file an amended H-1B petition

On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application (LCA) is required due to a change in the H-1B worker’s worksite location with the same employer. The AAO reasoned that the change of worksite location is a “material change” in the terms and conditions of employment which requires a new LCA.  The H-1B regulations require an amended petition be filed when there is a material change in working conditions.

Previously, the USCIS had taken the position that filing a new LCA would be acceptable when changing the jobsite location, and that an amended H-1B petition was not required. However, the AAO’s precedent decision now represents the USCIS position that employers are required to file an amended H-1B petition (Form I-129) before placing an

H-1B employee at a new worksite.  Once the amended H-1B petition is filed, the H-1B employee can immediately start working at the new location. They do not need to wait for a final decision on the amended petition.

When an employer does not need to file an amended H-1B petition.

Move within same MSA: A change of worksite location within the same Metropolitan Statistical Area (MSA) or area of intended employment does not require a new LCA. Therefore, an employer does 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 are 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.

Short-term placements: Under certain circumstances, an employer may place an H-1B employee at a new job location for up to 30 days, and in some circumstances, up to 60 days (where an employee is still based at the original location), without obtaining a new LCA, and without the need to file an amended H-1B petition.

For more information or questions, please contact:

Law Office of Richard A. Newman
521 Fifth Avenue
32nd Floor
New York, NY 10175