December 8, 2022

H-1B FAQs

Sarah Bileti

By Sarah Bileti

1. When is an employer required to file an H-1B amendment petition for a foreign worker?

A: An H-1B amendment petition is required when there is a material change in the terms and conditions of authorized employment.  What constitutes a material change is not explicitly defined by statute, but the United States Administrative Appeals Office (AAO) held in its precedent decision, Matter of Simeio Solutions, LLC that a change in work location that would require the filing of a new Labor Condition Application (LCA) constitutes a material change requiring the filing of an amended H-1B petition.  A new LCA is required for a change in work location that is outside the Metropolitan Statistical Area (MSA), or normal commuting distance, of the work location listed in the original petition.  In addition to changes in work location, other material changes prompting an amended H-1B petition may include significant changes in job duties and reductions in salary or hours.

2. What is the employer’s obligation with respect to H-1B workers if they begin to allow remote or hybrid work?

A:  If an employee’s H-1B petition is already approved and there is a transition to fully remote or hybrid work, the employer may be required to file an amended H-1B petition if the employee’s home address is outside of the metropolitan statistical area (MSA) of the worksite listed in the petition.  On the other hand, if the employee’s home is within the MSA, reposting the LCA at the employee’s home for the required period and adding it to the public access file with a memo about the worksite change may be enough.  This would have to be analyzed on a case-by-case basis for all H-1B workers impacted.

3. If an H-1B amendment petition is required for an employee due to a change in work location, when can the employee begin working at the new worksite?

A: The employee can begin working at the new place of employment as soon as the employer properly files the amended H-1B petition.  The employer does not have to wait for a final decision on the amended petition.

4. Can an employer allow an H-1B employee to work from a different location temporarily without triggering an amended H1B petition or new LCA?

A:  Yes, there is a short-term placement exception that employers may utilize, but only if the following conditions are met:

  • There is no strike/lockout in progress at the short-term placement location,
  • The employer does not already have an LCA on file for the geographic area of employment related to the short-term placement; and
  • The placement will not exceed 30 workdays within a one-year period. This is subject to the following additional caveats:
    1. A workday is any day the employee performs any work at the short-term placement location,
    2. The 30 workdays can be consecutive or nonconsecutive, and
    3. The temporary placement can be extended for an additional 30 workdays within the one-year period if the employer can demonstrate that the H-1B worker maintains ties to the home worksite, for example through maintaining a dedicated workstation at the permanent worksite or a home nearby, and the worker spends a substantial amount of time at the permanent worksite.
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