So, you have received approval for an H-1B visa, and , the project you are working on comes to an end. Another project is available. But, must your employer file an H-1B amendment before you start at the new location? The answer is .Maybe
The regulations need an H-1B amendment. This is when there is a big change in the job terms. Determining what is material is not always easy.
In 2015, USCIS issued guidance on when employers need to file an H-1B amendment in case of a location change. USCIS says an amendment is only needed if a move is to a new location outside the Metropolitan Statistical Area (MSA). Or if it’s outside the area of intended employment. 20 CFR 655.715 defines this rule.
According to 20 CFR 655.715, the area of intended employment includes the area near the worksite. This is where the beneficiary will work. It is within normal commuting distance. But, the regulation goes on to state that there is no definition of normal commuting distance.
When deciding if an H-1B amendment is necessary, it is best to check if the two locations are within the same MSA. You do not need to make a change. The second location is in the same MSA as the one listed on the original LCA and petition. An amendment is only needed if there is some other big change, such as in job duties or a large salary increase.
In 2015, USCIS stated that if a beneficiary works at a new worksite in the same MSA, then they do not need an amendment. But, you should still post the original LCA at the new location.
Since the pandemic, a lot of employers have allowed their employees to work . If an employee works from home, are they required to post the original LCA at home?
During a Department of Labor (DOL) Wage and hour Division (WHD) Meeting in October 2017, DOL was specifically asked this question.
- Many H-1B workers are now working remotely from their homes, instead of the employer’s office. If the employer has an LCA for its office but then will allow the H-1B worker to work remotely from home in a geographic area of employment that is not covered by the LCA, is the employer required to file a new LCA prior to the H-1B worker being allowed to work from home (assuming that the short-term placement option does not apply)? Is an employer required to complete the LCA notifications for an H-1B worker who will be working from home? If so, how/where should these notifications be posted at the H-1B employee’s home?
WHD Response: WHD does not expect employees to post at their houses. If the worker will be working at HQ and at home, the employer should post at HQ. The employer must file a new LCA for the employee’s home location. They must do this unless a short-term placement exception applies. This is the case if the employee will be working at a home location that is not near the location on the existing LCA.
So DOL said that they don’t expect employees to post at their houses. But, this is not official guidance, and the best practice is for employees to still post the original LCA. Document this. Do it by placing a letter in the Public Access File (PAF). The letter should confirm that we have posted.
But what if I started working from home and didn’t post the notice?
While it seems unlikely that DOL will punish employers/ employees who failed to post at the employee’s home, going forward employers/ employees are recommended to do this to avoid a potential violation.
Employees working at a new location within the same MSA should definitely ensure that the original LCA is posted and that this is fully documented in the PAF.
Will I have issues when I go for stamping if I am working at a location that is not the location listed on the original petition?
Possibly. Even in circumstances where USCIS does not require an amendment to be filed (a change in location within the same MSA) some of our clients have been issued a 221g. This 221g usually asks for a new LCA and amendment petition. In these cases, I have attempted to explain to the Consulate that an amendment is not required as per USCIS guidance, however, the Consulate has insisted on an amendment.
Therefore, if you are traveling overseas and need to go for stamping or filing an amendment is strongly recommended to avoid any delays, even for a change in location in the same MSA.
What is the short-term placement option, and can I use this to work at another location?
The short-term placement option lets an employer place an employee at a new location for 30 days. But, for this to occur, you must meet these conditions:
- There is no strike/lockout in progress in the H-1B worker’s occupation at the short-term location;
- The employer does not already have an LCA on file for the geographic area of employment; and
- An H-1B worker cannot work at any site in an area for more than 30 workdays in a year. The days can be consecutive or not.
The beneficiary can extend the short-term placement for up to 60 days. They do this by keeping a dedicated workstation at the original worksite. They spend a lot of time there.
When can I start working at a new location, which is outside of the MSA or area of intended employment?
Before starting a new project outside the current location, file a new LCA.
Unfortunately, things don’t always go as planned in real life. You may want to file the petition with a future start date. The beneficiary moved before submitting the amendment. But, if any documents show that the beneficiary has started working at the new location, USCIS could ask for more evidence. Or, they could decide that the beneficiary has violated their status. This would result in approval for Consular processing. The beneficiary would need to leave and come back with a new H-1B visa.
If you submit a petition with a future start date and it gets approved by USCIS, they can visit the site at any time. USCIS might contact both the beneficiary and the end-client. They will ask about the beneficiary’s start date. If the beneficiary started working before filing the petition, they are likely to discover this and revoke it.
What other factors could trigger the need for an amendment?
Employers must file an amendment whenever there is a material change in job duties. However, it is not always clear what would be considered a material change. A change in a location outside of the MSA clearly requires an amendment. Changes in job title don’t necessarily require an amendment unless there is also a change in job duties. Any reduction in pay or hours would be considered material and would require an amendment to be filed. A substantial increase in hours/and or salary may require an amendment and should be looked at on a case by case basis.
If you have questions regarding the above, please contact PLG partner at cprescott@patellegal.com.