Does an H-1B Employer Need To Amend a Petition When an Employee Changes Work Locations?

At Kriezelman Burton & Associates, LLC, we have guided employers through employment immigration compliance issues and concerns since 1974. One of the most commonly asked-about visas is the H-1B, and worksite changes are among the most commonly misunderstood H-1B issues. When is an amendment needed, and what are the requirements for doing so?

It is important to know that not every worksite move triggers the same requirements. The answer depends on:

• The location of the new worksite relative to the area of intended employment on the approved Labor Condition Application
• Whether the terms and conditions of employment change as a result of the move
• Whether the change is permanent or temporary (short-term or permanent placement)
• Whether proper notice has been provided at the new worksite

When Do Work Location Changes Matter?

H-1B visas are location-specific; their approval hinges in part on a certified Labor Condition Application (LCA) based on a particular area’s prevailing wage. Therefore, a change in work location can impact visa terms. A move within the same area of intended employment covered by the approved LCA generally does not require a new LCA. Employers may move H-1B workers to previously unintended worksite locations within that same area without filing a new LCA, provided the existing LCA remains valid.

A move outside the already-covered area of intended employment, however, is a different matter. That type of relocation typically requires a new LCA and may also require an amended H-1B petition filed with U.S. Citizenship and Immigration Services (USCIS).

Work Arrangement Changes Can Affect H-1B Compliance

A location change is not the only compliance trigger. If the move involves a material change in the terms and conditions of employment, such as a change in job duties, salary, or work hours, the employer may need to file an amended petition with USCIS regardless of geography.

Common examples of material changes include:

• A reduction in salary or hours
• A significant shift in job responsibilities
• A change from full-time to part-time status
• A new worksite with different prevailing wage requirements

What Are an Employer’s Responsibilities When Moving an H-1B Worker to a New Worksite?

If moving to a new worksite outside the original area of employment in the LCA, employers must file a new LCA for the relevant location and may need to file an amended H-1B as well. In contrast, employers moving an H-1B worker to a new worksite location within the same area of intended employment must:

• Post an appropriate worksite notice at the new location
• Keep the notice posted for 10 calendar days total, unless direct notice (such as email) is provided instead
• Post or deliver the notice on or before the date the H-1B worker begins work at the new location

Failing to meet these filing or posting requirements can expose employers to audits and penalties.

What Steps Should an Employer Take Before a Worksite Change?

Taking a proactive approach protects both the employer and the H-1B worker. Before any worksite change takes effect, employers should:

1. Review the existing LCA to confirm whether the proposed new location falls within the original area of intended employment
2. Assess whether any terms of employment will materially change as a result of the move
3. Determine whether short-term placement provisions apply (up to 30 days when certain other requirements are met)
4. Prepare and post required worksite notices before the employee begins work at the new location, where appropriate

If there is any doubt about whether an amended petition or new LCA is needed, consult an immigration attorney for legal guidance for your specific situation. Unintentionally missing a required step in the H-1B process can be problematic for you and your employee.

Get the Right Guidance Before Making a Move

H-1B compliance involves a lot of moving parts. The rules governing worksite changes involve multiple overlapping requirements from both the DOL and USCIS, and any errors can affect both employers and their employees.

At Kriezelman Burton & Associates, LLC, our employment immigration attorneys help businesses and their workers across the United States navigate H-1B compliance with confidence. To discuss a worksite change or any other H-1B questions, contact our office to schedule a consultation.