In today’s rapidly evolving work environment, shifts in employee work locations are common. These adjustments may occur due to remote or hybrid work arrangements, internal transfers, or broader organizational moves. However, what truly matters is how employers manage and document these transitions to avoid compliance risks, as even minor oversights can cost you a lot.
As an H-1B employer, are you confident in your approach to handling work location changes? If not, you’re not alone. This article will help you gain clarity on when and how to document work location changes to stay compliant with immigration regulations.
What is Considered a Work Location Change?
According to USCIS, a work location change is when the H-1B employee moves to a worksite that falls outside the original Metropolitan Statistical Area (MSA) or “Area of intended employment”. This is considered a direct violation of the Labor Condition Application, and if employers fail to record these employment changes systematically, they may face serious legal and financial consequences.
When Must H-1B Employers File an H-1B Amendment?
An H-1B amendment must be filed whenever there is any material change in the terms and conditions of employment, such as:
Significant change job title/duties or role
Change in working hours, such as full-time to part-time
Substantial change in salary, not consistent with the original H-1B petition
For example, if an H-1B worker moves to a new area that falls outside the MSA, the employer must file an H-1B amendment and a new Labor Condition Application.
Other reasons for filing an H-1B amendment include:
New client-site assignment: When IT consulting or staffing firms relocate an H-1B worker to a different client site in a different area.
Long-term remote work: If the employee has been working from home and the home address is not within the acceptable MSA.
Internal transfers: If the H-1B employee is transferred to a new city and the location is outside the MSA, the employer must inform USCIS to avoid serious legal consequences.
How To File an H-1B Amendment?
H-1B employers can follow these simple steps to file an amended petition:
Confirm the requirements: Evaluate the H-1B amendment requirements and confirm whether you are required to submit an amended petition or not.
File a new LCA: File and submit a new LCA (Form ETA-9035E) with the Department of Labor, clearly mentioning the new work location and wait for LCA certification (usually within 7-10 business days)
Post the LCA notice: Make sure to post the LCA notice at two locations at the new worksite for at least 10 days or inform the employees electronically.
Prepare the H-1B amendment petition: File a new Form I-129 with the following:
Wait for USCIS receipt: Once you have submitted Form I-129, wait for USCIS to send you a receipt regarding the amended petition, as the H-1B employee can only start working when USCIS accepts the amended petition.
Respond timely to an RFE: If USCIS issues a Request for Evidence (RFE), respond within the given timeframe with supporting documents. USCIS will issue an approval or denial notice. If approved, the H-1B status continues under the amended terms.
When are Employers Not Required to Document Work-Location Changes?
Employers are not required to document or record these changes in the employment location if:
Same MSA (Metropolitan Statistical Area): If the new worksite is within the same MSA as the location listed on the original LCA. Employers must post the existing LCA at the new location, but do not need to file a new LCA or amendment.
Short-Term Placements: When the employee works at a new location for 30 days or less (up to 60 days in some cases). The location must meet DOL’s short-term placement conditions.
Non-Worksite Locations: If the employee is temporarily at a location for training, meeting, or conferences and performs no productive work. The location is considered a non-worksite under DOL regulations.
How to Document H-1B Work Location Changes: Step-by-Step Process
STEP 1:Assess the change
Evaluate the location of the new worksite and determine the following:
Does the new location fall within the same MSA?
Is it a short-term placement (30 days or less)
Will the employee be working remotely or in a hybrid arrangement?
Is relocation permanent or temporary in nature?
STEP 2: File an H-1B amendment (if required)
If an H-1B amendment is required, employers must follow the structured process of filing an amended petition, updating all essential information to reflect the changes.
STEP 3: Update internal employee files
The H-1B employer must securely document and record these changes, including important information, such as:
The reason for relocation
Who requested the relocation
Who approved the relocation
Job duties, wage level, and any new changes made to the existing employment terms
Note: All these records should go into the employee’s personnel and immigration file.
STEP 4: Take care of the LCA requirements
Employers must make sure all LCA requirements are met to avoid compliance complications. If the work location change is happening within the same MSA:
The previously filed LCA must be posted at the new worksite for at least 10 business days.
Document LCA posting and save it securely to ensure audit-readiness.
Update the Public Access File (PAF), mentioning all recent changes.
If the work location change is happening outside the MSA:
The employer must file a new LCA.
Post the new LCA at the new worksite for at least 10 business days or inform all employees electronically.
After the LCA approval, file a new Form I-129 (H-1B amended petition).
Update the PAF and add all these new documents to it.
STEP 5: Notify payroll and tax compliance teams
Inform the payroll/finance team of the H-1B employee’s new work location and inform them about any new changes in the local/state taxes by thoroughly addressing the state-wise requirements.
STEP 6: Update immigration tracking systems
Many organizations rely on employee management tools to track and manage important data related to H-1B workers. These systems may include Excel spreadsheets, HRIS platforms, or immigration case management services.
Once the H-1B employee relocates, employers must update these tracking systems with the new information to ensure compliance with the immigration guidelines during an unexpected or scheduled site visit.
STEP 7: Conduct a post-move compliance audit
Conducting a post-move compliance audit is not a mandatory USCIS requirement, but rather a good practice that helps employers ensure they have completed the relocation formalities successfully.
During the post-move compliance audit, the H-1B employer must:
Make sure the H-1B amendment is filed accurately.
Check whether or not the LCA posting requirements are met.
Ensure the H-1B employee is fairly compensated according to the DOL guidelines.
Verify that all essential documents are recorded and saved in an easily accessible manner.
Ensure the employee is satisfied with the working conditions of the new location.
The PAF is well organized and updated.
Common Mistakes H-1B Employers Make
Documenting work-location changes for H-1B employees often involves several steps, which creates confusion and leads to continuous mistakes by employers, such as:
Failing to file an H-1B amended petition: Many employers lack clarity when it comes to filing an amended petition, as they believe notifying USCIS or filing a new Form I-129 is unnecessary.
Not meeting LCA posting requirements: Whether the new work location falls outside the MSA or not, the LCA notice must be posted at the new worksite for at least 10 business days, or else it will be considered a violation of the DOL guidelines.
Inaccurate documentation: Whenever an H-1B employee is being relocated to a new worksite, employers must document all changes and save them for the record, as failure to do so can create complications during an audit.
Not updating PAF: Missing, incomplete, or inconsistent PAFs can lead to serious civil penalties and hefty penalties, which is why all employers must maintain accurate Public Access Files to ensure compliance with the DOL requirements.
Failing to document short-term location changes: USCIS and DOL both provide limited exceptions under which H-1B employees can temporarily work outside the MSA without filing an H-1B amendment.
However, employers often misinterpret this requirement and fail to document these short-term assignments correctly.
Summing Up
Sometimes, due to certain circumstances, H-1B employees are required to change their work location and relocate to a different site. This location may or may not fall within the same Metropolitan Statistical Area (MSA), making it challenging for employers to determine the proper course of action for documentation.
To ensure compliance with USCIS guidelines, H-1B employers must carefully evaluate the case and understand whether or not an H-1B amendment is required. Even when an amendment is unnecessary, all essential changes must be documented systematically to facilitate a smooth relocation for the H-1B employees.
Struggling to find the right compliance partner? Look no further, as OnBlick has everything your business needs to stay at the forefront and ensure compliance with USCIS guidelines. Our best-in-industry strategies and expert assistance help you with your H-1B case management complexities at every step.
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