Ep. 51 Can an H1B Visa Holder Change Geographical Location?

  • The Simeio Solutions LLC case issued a president decision which held that employers must file amended H1B petitions. It changed the landscape as when we decide to file the amended petition specifically for cases being processed after April 9, 2015.
  • This states that, one, when an H1B employee changes their place of employment to a work site location, employers must certify a new LCA to DHS; two, when there’s a material change in determine conditions of employment, an amended or new H1B petition must be filed by the employer/petitioner.

Raw Transcript:

Jacob: Hello everybody, this is Jacob here at Ask an Immigration Lawyer Podcast. You ask, we answer, simple.

This is an update based on a lot of questions we’re beginning because of some new case law that came out recently and this pertains to H1B visa holders that are changing location of employment.

So, traditionally when people were changing location, we file in the Labor Condition Application, the LCA was sufficient and – There are only certain instances when one would need to actually file a full, completed amendment to the H1B. But a recent case, the Simeio Solutions LLC case, it’s a USCIS Admin Appeal Office, AAO, on April 9th 2015 which is very really a recent case, issued a president decision which held that employers must file amended H1B petitions when a new labor condition application for known immigrant worker is required due to a change in the H1B employee’s location.

This decision [unclear 00:01:23] because it states a few things: First, it says when H1B employee change their place of employment to a work site location that requires employers to certify a new Labor Condition Application to the Department of Homeland Security, this change may affect the employee’s eligibility for H1B status. And so it’s important for this condition to be a material change for the purpose of 8 cfr 214.2(h)(2)(i)(e). Now, second point, when there is a material change in determine conditions of employment, the petitioner or employer must file an amended or new H1B petition.

This President decision kind of represent the USCIS position that employers are required under certain circumstances to file an amended petition before placing an H1B employee at a new worksite. And USCIS will accept the comments on the draft of this law guidance for limited period of time.

So, it’s important to re-consult with a qualified immigration attorney whenever there is a situation where you’re concerned whether you need to file an amended H1B or not. But this case, the Simeio Solutions LLC, definitely changed the landscape here as to when we decide when we have to file the amended petition specifically for cases that are being processed after April 9, 2015.

So, if you have any questions feel free to email me jacob@askanimmigrationlawyer. And please remember that this information is provided as a courtesy to you, public service, and I’m not your attorney so keep this in mind.

Thanks for listening. You ask, we answer, simple.

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