USCIS Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision
On April 9, 2015, the USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC. It held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. This decision seemed to burden employers with the obligation of filing H-1B amendments every time the beneficiary employee worked at a place different than the one mentioned in the LCA application.
However, a new update from USCIS clarified that an amended petition is required if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Therefore, a move within an MSA does not require a new LCA or a new H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area 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, but you would still need to post the previously obtained LCA at the new work location.
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