USCIS Issues Final Guidance on Relocating H-1Bs

While the regulations regarding what to do about H-1B employees who work in locations other than their initial locations have been around for years, a recent Administrative Appeals Office decision issued in April compelled the U.S. Citizenship and Immigration Services (USCIS) to provide temporary, and now final, guidance on the issue. The bottom line is that whenever an H-1B employee works at a different location, an employer must ask whether a new Form ETA 9035, also known as the Labor Condition Application (LCA) must be filed. If a new LCA must be filed, then a new H-1B petition must be filed. Under these circumstances, the employee cannot start working at the new location until the H-1B petition is filed; the employee however does not have to wait for the H-1B petition to be approved. As with all rules, there are exceptions. If the employee is moving to a location within the original intended area of employment, then a new LCA may not be needed. The employer must still post an LCA at the new location however. Also, if the employee is at the new location for a few days under the "short-term placement" exception or if the employee is at the new location for development activities, e.g., management conferences and staff seminars, then a new LCA is not needed. Where a new LCA is not needed, then a new H-1B petition is not needed. USCIS' guidance issued yesterday also provided for corrective actions for those who are not in compliance with the relocation guidance. However, no employer may relocate an employee without following the new guidance after August 19, 2015. The H-1B visa is one of the most complex and most regulated visa categories. The above is provided as general information only. To ensure that you are in compliance with the terms and obligations of the H-1B program, please contact us at Clark Lau LLC regarding your specific circumstances.