1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

H1b Amendment Needed For Change In Work Location?

Discussion in 'Nonimmigrant Visa Applications' started by soopergal, Dec 22, 2015.

  1. soopergal

    soopergal Guru

    Messages:
    208
    Likes Received:
    156
    Trophy Points:
    43
    Hi Ron,
    My end-client work location changed from Albany, NY to Menands, NY on November 22, 2015. Albany, NY and Menands,NY both fall under Albany County. As per the new regulation it is the same geographical area - http://www.bls.gov/oes/current/msa_def.htm.

    Do I still need an amended petition?

    How will I be able to explain this to the visa officer in a US embassy in India?
     
  2. soopergal

    soopergal Guru

    Messages:
    208
    Likes Received:
    156
    Trophy Points:
    43
    Also the new location is 5.5 miles away from the old location
     
  3. speedracer

    speedracer Guru

    Messages:
    836
    Likes Received:
    363
    Trophy Points:
    63
    The client has a huge campus that spreads across 5 miles.. and you shifted as there was space limitations in one building and to increase the size of the team .. the management decided it would be a good idea to move the whole team to the other building to foster growth and improve team communication / productivity.. and also the fact that location of desk is a decision way above our pay grade .. lol.. I really don't think it would be huge deal if its close to ur current location..
     
    soopergal likes this.
  4. soopergal

    soopergal Guru

    Messages:
    208
    Likes Received:
    156
    Trophy Points:
    43
    you know, what you wrote is completely true. man i just hope those dumbos at the visa embassy get this.. :rolleyes:
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    The change in location is not a problem and, by itself, does not require an amendment. The bigger question is will you still be working for the same people doing the same job?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    This is what DoS sent out to the consulates recently:

    UNCLASSIFIED 15 STATE 134442
    NOV 30 2015
    SUBJECT: New Guidance on H-1B Adjudications Involving Changes in Place of Employment

    1. On April 9, 2015, USCIS' Administrative Appeals Office issued the precedent decision, Matter of Simeio Solutions, LLC, (Simeio), which held that an H-1B petitioner must file an amended or new H-1B petition when a new labor condition application (LCA) is required because of a change in the H-1B worker's place of employment. On July 21, 2015, USCIS issued a policy memorandum implementing the Simeio decision, available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015- 0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf. This cable summarizes USCIS' policy guidance on this decision and provides guidelines for consular officers in its implementation.

    When an Amended or New Petition is Required

    2. The petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a new geographical area. The place of employment is defined as the worksite or physical location where the work is actually performed by the H-1B nonimmigrant. As used in this guidance, geographical area means the area within normal commuting distance of the place of employment or within the same Metropolitan Statistical Area (available at http://www.bls.gov/oes/current/msa_def.htm). Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment. The petitioner does not have to wait for a final decision on the amended or new petition.

    When an Amended or New Petition is NOT Required

    3. If there are no other material changes in the terms and conditions of the H-1B worker's employment, petitioners are not required to file amended petitions for:
    • Movement of an employee's place of employment within the same geographical area;
    • Short-term placements of up to 30 days, or in some cases up to 60 days (where the employee is still based at the "home" worksite) or less, provided certain provisions of 20 CFR 655.735 are met; or
    • "Non-worksite" locations. A location is considered a non-worksite if the employee is attending training or a conference, the employee spends little time at any one location, or the job involves short periods of travel to other locations on a casual short term basis.
    Consular Officer Responsibilities

    4. The primary responsibility of consular officers in visa adjudication is to carry out the requirements of U.S. immigration law. As such, consular officers are not expected to verify the LCA or place of employment for all H-1B adjudications. However, if an adjudicator becomes aware of a change in an H-1B applicant's place of employment, the adjudicator should verify the petitioner has taken the appropriate steps outlined below or give them an opportunity to do so. For example, if the beneficiary presents a cover letter from the petitioner stating that the beneficiary's place of employment is different than that stated on the approved H-1B petition, an additional line of inquiry may be necessary to determine the actual place of employment. If the consular officer determines the applicant's place of employment has changed, the appropriate action on the visa application will be determined by the date on which the employee's place of employment (if not covered by an existing, approved H-1B petition) changed:
    • If the move to a new worksite occurred on or before April 9, 2015, then the petitioner may choose to file a new petition by January 15, 2016. However, USCIS will generally not pursue new revocations or denials based upon failure to file an amended or new petition. Consular officers should not require petitioners to file amended or new petitions in these cases, and should process the case to conclusion based on the original, approved petition.
    • If the move to a new worksite occurred after April 9, 2015, but prior to August 19, 2015, then the petitioner must file an amended or new petition by January 15, 2016. Consular officers should not require petitioners to file new or amended petitions in these cases before January 15, 2016; prior to that date, consular officers should adjudicate the case to conclusion based on the original, approved petition. After January 15, 2016, consular officers should refuse the visa application under Section 221(g) of the Immigration and Nationality Act (INA) until the petitioner has provided a copy of a USCIS Notice of Receipt (Form I-797) or the consular officer has verified that an amended or new petition has been filed. The case should be adjudicated to conclusion even if the amended or new petition has not yet been approved. The PIMS record should use the original, approved petition number, and the visa should be annotated with: "New worksite - petition [new receipt number] filed [date].
    • If the move to a new worksite occurred on or after August 19, 2015, then the petitioner must file an amended or new petition before the employee begins work at the new place of employment not covered by an existing, approved H-1B petition. Consular officers should refuse the visa application under INA Section 221(g) until the petitioner has provided a copy of a USCIS notice of receipt that an amended or new petition has been filed. The case should be processed to conclusion based on the receipt notice, even if the amended or new petition has not yet been approved. The PIMS record should use the original, approved petition number, and the visa should be annotated with: "New worksite - petition [new receipt number] filed [date]."
     
  7. soopergal

    soopergal Guru

    Messages:
    208
    Likes Received:
    156
    Trophy Points:
    43
    Yes my entire team(my boss and my boss's boss total of 36 ppl) had to move due to space constraints and 2 lateral teams have also moved with us since we work so closely. I will be doing the same work with the same people I used to at the old location.
     
  8. speedracer

    speedracer Guru

    Messages:
    836
    Likes Received:
    363
    Trophy Points:
    63
    not sure if you saw this in the statement above , you may not to file amendment but this is about LCA posting in new location, its from the new memo .. check with the legal as well..

    move within an “area of intended employment”: If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See INA section 212(n)(4); 20 CFR 655.734.
    Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition.
    However, the petitioner must still post the original LCA in the new work location within the same area of intended employment. For example, an H-1B employee presently authorized to work at a location within the New York City metropolitan statistical area (NYC) may not trigger the need for a new LCA if merely transferred to a new worksite in NYC, but the petitioner would still need to post the previously obtained LCA at the new work location. See 20 CFR 655.734. This is required regardless of whether an entire office moved from one location to another within NYC, or just the one H-1B employee.
     
    Last edited: Dec 23, 2015
  9. soopergal

    soopergal Guru

    Messages:
    208
    Likes Received:
    156
    Trophy Points:
    43
    Yes i've posted the previously obtained LCA at the new work location for 15 days and got a letter confirming this.
     
  10. saratk2k

    saratk2k New Member

    Messages:
    2
    Likes Received:
    0
    Trophy Points:
    1
    Ron,

    Should we wait for amendment receipt notice, before starting work at new work location?
     

Share This Page