I work Full time in mid sized product company (not EVC model) on H1 valid till 2020. Company is closing my office location A in 4 weeks and asked us to work from home. We are in process of filing H1 Amendment for working from home.
Following are some of the questions I have:
In worst case, if H1 Amendment gets denied (any reason after office location is closed), what options will I have and how much time ?
Will my original H1 petition be valid after denial? As place of employment for that original H1B LCA is no longer a Company office?
Will my stay beyond denial be considered legal ? Can I still continue to be in US legally or quickly move to different office location within a specific time period with new H1 petition/Amendment after denial?
My current home is in different county as well as MSA than closing office (20 miles). In case of H1 Amendment - RFE/denial, can I move to a location in same county/MSA (in 5 miles of place of employment on existing H1 LCA) even if that work location is closed and continue working without any issues?
We have another office location B (150 miles from my home/closing office location) in same state that will not close. Is adding this location in Amendment as place of work besides home location safer even if I will work from home only? I fear RFE due to 2 work places/distribution hours?
1. H1B amendment denial for work from home - company office closed
The only option once the H1B amendment is denied to use the old H1B approval and work according to the listed work place.
The chances of H1B Amendment denial are LOW since you are working with direct client.
There is no official limit on how many days you can wait. Usually, the denial date is considered the last date!
2. Original H1B petition remains valid
Yes, original petition remains valid till its validity period. But, the problem is that you have to go back and work at the same work location, which may not be true in your case.
3. File new H1B petition/Amendment after first denial
Yes, you can file another H1B amendment based on the reason for first one’s denial, but it has to be done quickly, normally, within a week.
4. Move within same MSA
You can move your work location within same MSA (with approved H1B) but it also requires LCA posting.
In this case though, only LCA posting is required on the new work location, not the LCA approval.
HR will have to maintain the records of LCA posting.
A new LCA approval would be required when you file for H1B extension using this new work location within that MSA.
5. Home and distant office location in H1B amendment LCA
Adding the work location (even though 150 miles) away in same state in addition to your home location is probably not going to increase your chances of approval.
The bigger factor is employer’s credential.
Since, you are working with direct client, your chances of approval for work from home H1B amendment are pretty high.
Your concern is right about the RFE for having two location in the H1B petition that are 150 miles apart.
You may have to provide the detailed list of your working hours at each location.
Thank you so much Anil, for your responses. It is certainly helping me narrow down the scenarios.
I am a bit stressed out, about thinking the worst case scenario in case of denial due to any reason.
(For now, I am only thinking from worst case scenario point of view - which is H1 Amendment RFE/Denial).
However I understand/agree with your point that being a direct client the chances are pretty low for denial.
It seems, the safer option here is to move within the same MSA. This will help to avoid
filing the H1 Amendment altogether and thus possibility of tricky scenarios in case of denial. Please let me know if you agree to this.
Also, it’s easier for me to relocate within MSA (since I don’t have a family yet). I am anyways thinking of
switching jobs in few months. So don’t want to get entangled into any tricky situation right now.
I have couple of questions regarding moving within MSA. Lets say I continue to stay at my current residence which is outside of MSA and get my H1 Amendment for work from home started while the office is not closed yet.
Can I relocate within MSA, after the office location closes in 4 weeks and that the H1 Amendment is already filed for working from home for my current residence which is not in MSA (no decision has been taken yet - nor denial nor RFE received) ?
If so then I assume once I relocate, the company has to just withdraw the amendment petition and rely on LCA posting (which might happen after office location is closed).
Can I relocate within MSA and continue working, after I receive any RFE/or Denial for H1 Amendment filed for working from home for my current residence which is not in MSA ? Will this be an issue as H1 Amendment is denied and I don’t know what is the status of my original H1 petition since the place of employment mentioned in LCA of original H1 petition is no longer a office location.
Please do let me know if you think, I should relocate within MSA before the office location closes as well rather than relocating after filing my H1 Amendment for working from home for my current residence that is outside of MSA?
If H1 Amendment approves and I still relocate, its not that tricky scenario I guess, since one way or the other I will be safe.
Its, just that besides location - My title changed since my H1 extension was approved last year (Software Engineer -> Sr. Software Engineer but my salary changed only 5% and is comparable with Software Engineer II levels in the area more than Sr. Software Engineer level. So I am worried that USCIS, in present time of excessive scrutinization, may question about wage level/Job title as well during amendment). So want to avoid all this possibilities by not having to file Amendment at all. Hence thinking, moving within MSA might be safer.
Your response to above 3 questions regarding moving within MSA, will help me decide a suitable time to shift. To either look to shift in MSA right away within next 2-3 weeks or I can shift in may be another 6-8 weeks after office location closes.
Once again, thank you very much for your inputs. Very much appreciate it.
Yes, moving within same MSA seems to be a better option if you want to avoid filing h1b-amendment completely in your case.
Remember, LCA posting still needs to be done either at your new work location (where you move within MSA) or at the company’s headquarters or current work location.
1. File H1B amendment and withdraw once I relocate to new location within MSA
You can do that.
But, you are un-necessarily adding complication to case by filing an application and then withdrawing it.
It would be better to discuss it with your employer’s attorney before intending to do anything like this.
Your employer’s credibility is also at stake here.
2. H1B amendment denial
As I already mentioned, your existing H1B approval still remains intact if your employer does not withdraw it. You can use it to go back and keep working using your existing H1B.
3. Relocate before office closes to same MSA as current office
It is entirely your choice. You can move within same MSA and just post the LCA at new location and start working there using your existing H1B.
But, your employer and their attorney should KNOW about it. This is crucial as USCIS has increased site visits to check and validate the real employee and their work location.
If you get a site visit and the LCA has not been posted or your employer does not know about your work location, you will be in trouble immediately.
I wanted to clarify - I was thinking that since the place of employment office location is closing in 4 weeks and lets say I get the H1 amedment denial in 10 weeks from now - How can I continue working with the same employer ? Since the place of employment in LCA of the H1B is no longer valid. Hence the LCA becomes invalid and thus the corresponding H1B becomes invalid ?
Do you mean, I can relocate within MSA at this denial point and continue working without any issue just by LCA posting ?
Well, if the office is closing in 4 weeks, you should move to office’s MSA quickly and post LCA for that location in your current office immediately.
You can then start working from there.
If you want to wait for H1B amendment result (10 weeks), I am afraid, you will be late and would be inviting un-necessary trouble.