Can I Continue to Work From the New Location in Case of Rfe

One of the hallmarks of the H-1B visa is that it holds a few advantages over other nonimmigrant visa classifications. A chief advantage is its portability. Being able to change employers, work full or part-time, and even work for multiple different employers simultaneously is a primary reason why the H-1B is so competitive. However, you may not realize that you need an H-1B amendment for location change, even with the same employer.

What is an H-1B Amendment for Location Change?

There are several situations where you would need to have your sponsoring employer file a new petition on your behalf. You need a new petition if your position changes significantly or you are changing employers altogether. This means that the USCIS will re-decide if you are qualified for your H-1B visa.

However, there are some circumstances where your employer must file to have your current petition amended. These include a change in job duties, a significant salary increase, or a title change. In these instances, as long as the position is still a specialty occupation that requires your bachelor's degree or higher, you should amend your petition.

But what about a change in job location? Do you need an H-1B amendment for location change, even with the same employer?

Policy Interpretations of Location Change

Problems occur when the USCIS visits the location indicated on the H-1B petition. Since the employer submits location changes only to the Department of Labor through the Labor Certification Application, the USCIS is unaware of any changes. Thus, when the USCIS Fraud Detection and National Security (FDNS) group visits the area of employment, they visit the previous employment site. H1 B's employment legitimacy is then challenged.

Typically, when the FDNS visits a previous employment site, the USCIS submits a Notice of Intent to Revoke (NOIR) for noncompliance of the H-1B terms and conditions.

Suppose the H-1B worker has received a NOIR, the H-1B petition risks being revoked. Some employers can solve the problem if they promptly provide evidence of having filed a new LCA with the employee's relocation.

Another rising issue typically occurs when IT consulting companies hire H-1B holders. Generally, consulting companies place their H-1B workers at different client locations. This causes the USCIS to doubt H-1B employer and employee compliance with H-1B regulations. However, according to the Adjudicator's Field Manual, as long as the beneficiary maintains the same employer, salary, title, and duties, they are not mandated to file an amended petition.

H-1B Amendment for Location Change

Though the USCIS has not stated specific regulation changes, due to the pattern of recent denials, you should file an H-1B amendment when there is a change to the employee's work location. Any material change in the terms and conditions of employment requires an H-1B amendment. Therefore, it would seem that the USCIS considers a change in location as a material change that requires an amendment.

The safe action is to file the H-1B amendment for location change. However, your immigration attorney can better assess your situation and advise you on the best thing to do.

When is an H-1B Amendment Required for a Location Change?

The following are examples of situations that may qualify for "material change" when an employee changes worksite locations, which will require filing an amendment:

New worksite is not within the same metropolitan statistical area (MSA) from the initial H-1B petition and LCA
- There isn't technically an H-1B amendment 50-mile rule, but USCIS and the Department of Labor analyze the change by examining the worksites' zipcode MSA. For example, if you move from working in Miami to Fort Lauderdale, about 30 miles apart, your MSA has not changed because they both belong to the Miami-Fort Lauderdale-Pompano Beach Metropolitan Statistical Area (MSA). In this case, USCIS does not require an H-1B amendment. However, if your work location were moving from Miami to New York City, then USCIS would require an H-1B amendment because the MSA is changing.
Change of location will also involve any other material change
- For instance, if the employee's condition of employment or job title will also change. What constitutes an H-1B material or immaterial change can sometimes be murky. It is best to have an immigration lawyer guide you on this based on your specific case.

Check any Metropolitan Area with this handy tool. It's safe to say that if the new workplace is within "normal commuting distance" (20-50 miles), it is most likely the same MSA and therefore does not need a new LCA or H-1B amendment.

When an H-1B Amendment May Not Be Required for Location Change

You may not need to file an H-1B amendment for a change of location for an H-1B employee if:

The employee is moving to a new worksite within the MSA or area of intended employment covered by the initial H-1B petition. However, the original LCA must still be at the new worksite. USCIS requires this step whether an employer is moving the entire workforce from one worksite to another within the MSA or it is just only one employee.
The movement to a new location is just for short time placements, where the employee is only spending not more than 30 days, and in some cases, not more than 60 days. Therefore, moving to a new location for 30-60 days (consecutive or non-consecutive) qualifies as a short-term placement option and typically does not need a new LCA.
The H-1B worker is only moving to a "non-worksite" location. A location can be said to be "non-worksite" if:
- the employee's purpose for going there is to participate in a staff seminar, management conference, or other employee-development activities;
- the employee will only spend a little time at any one location; or
- the job is "peripatetic in nature." The USCIS defines peripatetic jobs as:

Such situations where [the employee's] primary job is at one location but there is a need to embark on occasional travel for short periods to other locations on a casual, short-time basis, which can be recurring but not excessive.

- Specifically, one time visit by a peripatetic worker to such other locations should not exceed five consecutive days. As for workers who spend most work time at one worksite and travel occasionally to different locations, one-time travel to such locations must not exceed ten days.

H-1B amendment

H-1B Amendment Processing Time

While the timeframe varies significantly on a case-by-case basis and which service center is processing your request, the H-1B visa amendment processing time usually is around 4-6 months. For example, the current timeframe for the California service center to process H-1B amendments is 7.5-9.5 months. In contrast, the Nebraska and Texas service centers are operating much faster, with amendments taking between 2-4 months.

Note that if you file closer to the regular H-1B filing season, it could also take longer. One option to expedite the process is H-1B amendment premium processing. By selecting H-1B amendment premium processing, you will have it completed in 15 calendar days.

Penalties for Not Filing an Amendment for Location Change When Necessary

If an H-1B amended petition for a change of worksite locations is required and is not obtained, the consequences could be felt by both the employer and employee. For instance, the employee may lose their H-1B status and face deportation. Therefore, employers must have a good understanding of the USCIS regulations regarding petition amendments.

When Should an Employer Submit the Amended Petition for Change of Worksite Locations?

Going by the Administrative Appeals Office (AAO) decision in 2015, employers are required to apply for an amendment when there is a material change to the initial petition. But, it did not expressly clarify if they should file the amendment before the movement.

However, to be on the safe side, it is advisable that employers promptly notify the USCIS of any material change. So therefore, you should file the amendment before the employee moves. If the move has already occurred, the employer should start the amendment process as soon as possible.

How to File H-1B Amended Petition for Location Change

To apply for an H-1B amendment, the employer must submit an I-129 form to the USCIS.

The employer should gather all the necessary information about the relocation and include them in the H-1B Labor Condition Application (LCA). The Department of Labor (DOL) typically decides on these cases within one week.

The next thing is to prepare the I-129 petition as well as other necessary supporting documents for the case, such as:

the employee's H-1B visa
a copy of the employee's passport
a copy of the employee's I-94 form
a copy of the H-1B employee's updated resume
copies of the employee's three most recent payslips
copies of the employee's education degree
the employee's work itinerary

If you are using H-1B premium processing, you must submit an I-907 form with the petition.

H-1B Amendment FAQs

Should the amended petition be approved before an H-1B worker can move to a new location?

Again, the AAO decision is also silent on this question as it did not clarify whether employers should wait for approval of the amended petition before moving an employee to a new worksite location. However, an employer should at least try to submit the amendment before the move takes place. With that, the action will be easier to defend if the employer and/or employee are questioned during the USCIS worksite visit to their office.

Do I need to file an H-1B address change amendment?

You need to when there is a 'material change' that is significant to the conditions of the employment. For example, a change in job responsibilities, job title, considerable raise, and significant change in job location would warrant an H-1B amendment.

What If the amended petition is denied?

If the amended H-1B petition is denied, it will not affect the employee's legal immigration status at the job location listed in the initial petition. With this, the H-1B worker can return to the original worksite location and continue their job as long as the original H-1B petition is still valid.

Do I need to tell USCIS if I change home addresses?

Yes, you should notify USCIS within ten days. You can do so through your USCIS online account or Form AR-11.

Can I file another amended H-1B petition for location change if I still have an amended petition pending?

Yes, an employer can file another amended petition for a change of worksite locations for an H-1B employee even if there is another pending amended petition on which USCIS has not decided. However, each amended petition must meet the criteria for H-1B classification. Also, if the employee's H-1B status expires while those petitions are still pending, denying any of the amended petitions will lead to the denial of all successive amended petitions.

What is the H-1B Amendment Processing Time?

Like the original H-1B petition, your amendment processing time will depend on the caseload of the service center that is processing it. A general rule of thumb is this: the closer it is to the H-1B filing season (April) the longer it will take to process your amendment. On average, it can take between 4 and 6 months to process your H-1B amendment, though it can take more or less time given the circumstances. Alternatively, you may be able to file the amendment with premium processing to reduce the processing time to 15 calendar days. If you elect for premium processing, you will need to file Form I-907, Request for Premium Processing Service.

How much does the H-1B amendment cost?

The fee is the same as if you were filing a new petition except the employer is not required to pay the $500 fraud fee since the employer isn't changing. So the cost to file Form I-129 is $1,500. You can see all H-1B filing costs here.

What happens if I don't file for an H-1B visa amendment and am supposed to?

USCIS retains the right to take action, and in severe cases, they can revoke your H1 visa status, and you may be required to leave the U.S. Discuss with your attorney whether an amendment is appropriate for your case and the best way to file one.