A common practice among US companies is to reassign employees to a new office location in a different city or state within the country. This may be either a temporary move or a longer term assignment, and is especially common with IT companies that may need to relocate skilled technical employees for training or support reasons.
A question that arises for foreign workers employed under an H1B visa is how a transfer or change in location will affect their visa status. In most cases, it will depend on the amount of time that an employee will spend in the new location and in what capacity.
Filing a New LCA and H1B Petition for Changes in an Employee’s Location
The original H1B visa sponsorship petition will list a worksite location for the employee as part of the Labor Condition Application (LCA). Previously, moving locations was not a major issue for employees on an H1B, but a ruling in 2015 by the USCIS has changed that. Now, any change in the employee’s worksite will be seen as a ‘material change’ to the original H1B petition, and will require an amended LCA to be filed with the new worksite. Failure to file an new LCA will result in revocation of the H1B visa, threatening the worker’s legal immigration status.
The amended LCA was always required for location changes, but a legal case added another layer of compliance for H1B visa sponsors. The change in location also means that the employer will have to file an amended H1B visa petition before transferring the employee to the new worksite.
This means that companies will have an extra administrative burden for transferring sponsored foreign workers, and will need to plan ahead for assignments to a new location. However, as long the amended H1B petition is filed, the employee can begin working at the new site without waiting for a final decision from USCIS on the amended petition.
Short Term Assignments and Non-Worksite Locations Are Exempt
Any transfers of less than 30 days are exempt from this rule, and will not require a new LCA or amended H1B visa petition. This exemption is extended to 60 days if the worker is still based at the original location listed in their H1B visa petition. This is welcome news for companies that use some employees to train other workers in specific skill areas, usually for a finite time period.
Also, non-worksite locations that may be part of employee development, training seminars or periodic visits to other office locations will not be subject to this LCA rule. Those visits can last up to 5 days (10 days in certain circumstances) without triggering the location change requirements.
What if the New LCA and Amended H1B Petition Are Denied?
If for any reason the USCIS denies the amended petition, the employee still has legal immigration status at the location listed in the original H1B petition. In that case, they can return to that location without any effect on their visa status.
Employers that utilize many workers under H1B visas will need to be aware of the steps to comply with these rules, and recognize the fact that the USCIS does conduct worksite visits for H1B visa sponsors to make sure that the LCA rules are not being overlooked or ignored.
If you have questions about how a location change might affect your visa status please contact us for further guidance.
- March 12th, 2018