On April 9, 2015, the Administrative Appeals Office (AAO) released a new precedent decision holding that whenever a change takes place which requires a new Labor Condition Application (LCA) and H-1B amended petition must also be filed.

by Noelle McLaughlin

On April 9, 2015, the Administrative Appeals Office (AAO) released a new precedent decision holding that whenever a change takes place which requires a new Labor Condition Application (LCA) and H-1B amended petition must also be filed.

On May 21, 2015, AILA posted an e-mail from USCIS with guidance for when to file an Amendment for H-1B cases in the wake of the April 9th Simeio Solutions precedent decision. In addition to further clarifying when an H-1B amended petition is required, USCIS has stated that they will give employers who, in good faith, relied on previous USCIS correspondence, a grace period in which to file H-1B amendments.

When to File H-1B Amendments

• If the H-1B beneficiary's place of employment changed before May 21, 2015 to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition, then the petitioner has until August 19, 2015 to file an amended petition.
• If the H-1B beneficiary's place of employment will change after May 21, 2015 to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. then an LCA must be certified and an amended H-1B petition filed before the change can take place.

Further, if an amended H-1B petition is denied, but the original petition is still valid, the H-1B beneficiary may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite. If a previously-filed amended H-1B petition is still pending and the beneficiary needs to change to yet another worksite location that is not covered by the LCAs previously submitted to USCIS, then the petitioner may still file yet another amended petition to allow the H-1B beneficiary to change worksite locations immediately upon the latest filing (but each petition must still meet the qualifications for H-1B employment individually).