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Is An H-1B Amendment Really Required?

So, you have been approved for an H-1B and without notice, the project you are working on suddenly comes to an end.  There is another project available, however, is it necessary for your employer to file an H-1B amendment before starting at the new location?  The answer is maybe.

The regulations state that an H-1B amendment is required whenever there is a material change in the terms and conditions of employment.  Determining what is material is not always easy.

In 2015 USCIS issued guidance on when an H-1B amendment is required, in the event of a location change.  USCIS takes the view that an amendment is only required when there is a change in location to a new location that is outside of the Metropolitan Statistical Area (MSA) or area of intended employment, as defined at 20 CFR 655.715.

20 CFR 655.715 states that an area of intended employment covers the area within normal commuting distance to the worksite where the beneficiary will be employed.  However, the regulation goes on to state that there is no definition of normal commuting distance.

When determining whether an H-1B amendment is required it is best practice to check whether the two locations fall under the same MSA.  If the second location is in the same MSA as the one listed on the original LCA and petition, then an amendment is not generally required, unless there is some other material change in employment such as job duties or a significant hike in salary.

USCIS stated in its 2015 guidance that if a beneficiary works at a new worksite within the same MSA, an amendment is not required.  However, the original LCA should still be posted at the new location.

Since the pandemic, a lot of employers have allowed their employees to work remotely.  If an employee works from home, are they really 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.

  1. 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. Unless one of the short-term placement exceptions applies, the employer will need to file a new LCA for the employee’s home location if the employee will be working at a home location that is not within normal commuting distance of the location on the existing LCA covering the employee.

So DOL said that they don’t expect employees to post at their houses.  However, this is not official guidance, and the best practice is for employees to still post the original LCA.  This should be documented by placing a letter in the Public Access File (PAF) confirming that the posting was done.

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 allows an employer to place an employee at a new location for 30 days provided the following conditions are met:

  • 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
  • Placement of the individual H-1B worker at any site in an area of employment does not exceed 30 workdays (consecutive or non-consecutive) within a one-year period.

The short-term placement option can be extended for up to 60 days provided the beneficiary maintains a dedicated workstation at the original worksite and the worker spends a substantial amount of time at the original worksite.

When can I start working at a new location, which is outside of the MSA or area of intended employment?

If your current project comes to an end and the new project is in a location outside of the MSA, a new LCA and amendment petition needs to be filed BEFORE the beneficiary starts at the new location.

Unfortunately, in practice, this does not always happen.  If the beneficiary starts at a new location before the amendment is filed, it is tempting to file the petition with a future start date.  Certainly, if any of the documents in the petition indicate that the beneficiary has already started at the new location, USCIS may question this via RFE and/or make a finding that the beneficiary has violated their status.  A violation of status will result in the petition being approved for Consular processing, requiring the beneficiary to leave and re-enter with a new H-1B visa.

If you decide to file with a future start date although the petition may get approved within the US, you need to be aware that USCIS can conduct a site visit at any time.  This may include the officer contacting the beneficiary and end-client and asking about the beneficiary‘s first day at work.  If it later transpires that the beneficiary started at the location prior to the amendment being filed, USCIS will most likely revoke the petition.

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.

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