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USCIS wording ambiguous in H-1B visa decision

California employers who hire foreign workers and their employees may wonder how a recent United States Citizenship and Immigration Services decision might affect those workers. According to the USCIS, if employers transfer an employee on an H-1B visa to a new location, they must also file an amended H-1B petition.

The USCIS stated in May that the amended petitions had to be filed retroactively for any moves that occurred prior to April 9, 2015, with an August 19 deadline. However, those guidelines have been altered. The deadline has been extended to January 15, 2016.

The revised guidelines also have changed their wording around moves prior to April 9, 2015. USCIS says that they would be unlikely to pursue employers who had failed to file a petition for moves in this time period but any cases already in progress with request for evidence, notices of intent to deny or revoke, and other actions were still in effect. Employers could choose to file a new or amended petition by the deadline, but for moves after that date until August 19, the new or amended petition is required. After August 19, an employee cannot start working at the new location unless an amended or new petition has been filed.

Due to the complexity and ambiguity that remains around this issue and immigration law in general, employers may wish to consult an attorney regarding the best course of action. For example, an employee may have been moved from a Bay Area location to one in southern California in February 2014. Even though USCIS does not appear to require a revised petition for that individual, failing to do so may leave employees more vulnerable having these types of visas challenged. Employees in such a situation may also want to speak to an attorney.

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  • American Immigration Lawyers Association
  • State Bar of California | California Board of Legal Specialization
  • Avvo
  • Orange County Bar Association
  • Irvine Chamber