Employers Must File Amended H-1B Petitions for New Work Locations

Today the Administrative Appeals Office (AAO) of the USCIS ruled in a published opinion that employers must file amended I-129 petitions for H-1B workers who move or add worksite locations, overturning an earlier policy of permitting just a Labor Condition Application (LCA) to be certified and posted in the new location before the employee started work there.  This new decision, Matter of SIMEIO Solutions LLC, 26 I&N Dec. 542 (AAO 2015), will impose additional expense on employers, and require a more extensive filing (with fee) than just an LCA posting when employees are sent to a new worksite location not listed on the last H-1B filing with USCIS.

The decision, however, does not change the rules regarding peripatetic workers, where the nature and duration of the workers job functions require short-time presence at different locations, or H-1B workers who spend most work time at one location but occasionally travel for short periods to work at other locations.  Examples of non-worksite location situations not requiring an LCA posting include a computer engineer sent out to customer locations to troubleshoot complaints, a sales representative making calls on prospective or established customers within a home office sales territory, a manager monitoring the performance of out-stationed employees, an auditor providing advice or conducting reviews at customer facilities, a physical therapist providing services to patients in their homes within the area of employment, or an individual conducting research at a library or taking a customer to lunch.  Worksite locations requiring an LCA posting, and under the new policy a new I-129 petition with fee, include a computer engineer working on projects at different locations for weeks or months at a time, a sales representative assigned on a continuing basis in an area away from his or her home office, an auditor who works for extended periods at the customer's offices, a physical therapist who fills in for full-time employees of health care facilities for extended periods, or a physical therapist who works for a contractor whose business is to provide staffing on an as needed basis at hospitals, nursing homes, or clinics.  To be considered peripatetic work or short-term travel, and thus not a worksite requiring an LCA, the periods of time spent at a particular location must be short-term and not excessive, which is defined in the regulations as not exceeding five 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.

The decision also leaves in place short term placement rules in the regulations which do not require an LCA posting if the placement within a one year period is no more than 30 days in certain circumstances or 60 days in other circumstances.  See 20 CFR 655.735.  The decision also leaves untouched the provision of 20 CFR 655.734(a)(2) which provides that where the employer places an H–1B worker at one or more worksites not contemplated at the time of filing the LCA, but which are within the area of intended employment listed on the LCA, the employer is required only to post electronic or hard-copy notice(s) at such worksite(s), on or before the date the H–1B worker begins work.  Thus, moves within a Metropolitan Statistical Area covered by an existing LCA that was filed with the worker's H-1B would require just the LCA notice requirements be met and not an amended I-129 petition filing.  Whether an LCA or an amended petition is required for a workplace move or travel is a determination that should be undertaken only with the advice of competent counsel.