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The U.S. Citizenship and Immigration Services’ (USCIS’s)
Administrative Appeals Office (AAO) released a decision April 9, 2015, reversing
earlier precedent and holding that amended petitions are required for all H-1B
work location changes when a new Labor Condition Application (LCA) is filed.
Prior to this decision, many employers filed new LCAs but did not amend
petitions in these circumstances, said Justin Storch, manager of agency liaison
at the Council for Global Immigration.
The AAO decision ruled that if a new LCA is filed for an H-1B
employee to reflect a change in work location that is outside the metropolitan
statistical area of the original worksite stated on the LCA and corresponding
H-1B petition initially filed for the employee, then an amended or new petition
must also be filed to reflect this change.
Failure to do so will be considered grounds for revocation of
the underlying H-1B petition, said Ian Macdonald, a shareholder in the Atlanta
office of Greenberg Traurig and the firm’s business immigration and compliance
practice group leader. “Employers should also note that USCIS is expected to
make 30,000 administrative H-1B and L-1 site visits this year with this being
one of the agency’s top investigative priorities, thereby increasing the need
for employers to ensure compliance with this rule for all active H-1B
employees,” Macdonald said.
This decision applies to all H-1B employees and is effective
In the Matter of Simeio Solutions LLC, the AAO decided
in favor of the USCIS California Service Center to revoke the approval of a
petitioner’s H-1B petition due to changes in the beneficiary’s places of
employment, which were not communicated to USCIS.
In the case, USCIS was not able to find the worker at the Long
Beach, Calif., location named on the initial LCA and on the H-1B petition. It
was determined that the employee’s worksite had changed approximately two months
after the start of the beneficiary’s H-1B employment. The employer, an IT
services firm, indicated that the H-1B employee would work at additional work
sites, not named in the initial petition, and provided certified LCAs for two
new worksites, in Camarillo, Calif., and Hoboken, N.J.
USCIS then asked the employer to file an amended H-1B petition
reflecting the worksite changes. The employer argued that the new LCAs were
sufficient to show compliance with H-1B regulations. The California Service
Center did not accept these arguments and revoked the petition. The petitioner
then appealed to the AAO.
The Hernandez Letter and Previous Practice
In July 2003, Lynn Shotwell, executive director of Council for
Global Immigration (formerly the American Council on International Personnel),
sent a letter to USCIS
seeking clarification on whether an amended petition is required when an H-1B
employee transfers to a new location not included on the original filing, but
which is covered by an LCA in place prior to the move. In October 2003, Shotwell
received a letter from Efren
Hernandez III, the director of the Business and Trade Branch of USCIS, stating
that, as long as the LCA was certified and any other LCA obligations were met
prior to the employee starting work at a new worksite, no material changes
existed which would require the filing of an amended H-1B petition.
“Employers relied on the Hernandez-Shotwell correspondence for
years, which stated that employers need not file amended H-1B petitions simply
because the location changed,” said Storch. “The AAO decision overruled the
correspondence immediately, with no notice to employers, and employers are
scrambling to update their internal immigration processes.”
The decision leaves one issue unresolved: whether a new
worksite within the same metro area will be considered a material change
requiring the filing of an amended H-1B petition.
“A reasonable interpretation would permit an H-1B employer to
post new LCA notices only and not file an amended H-1B petition as long as all
LCA obligations are met prior to the H-1B employee starting work at a new
worksite,” said Macdonald. But a more “conservative read of the decision
warrants the filing of a new or amended H-1B petition even for those cases
involving a new worksite in the same [metro area],” he added.
Macdonald recommended employers attempt to list every worksite
location where an H-1B employee will work throughout the duration of the H-1B
petition, including teleworking from home, or any anticipated office
“Employers who have previously moved an H-1B employee to a new
location pursuant to a certified LCA, but without filing a corresponding new or
amended H-1B petition, should consider doing so now to ensure compliance with
this precedent decision. Without a doubt, this decision will have the
greatest impact on IT sourcing companies, as they are more likely to employ
individuals who work at various client-specific locations throughout the term of
their H-1B stay, which were unidentified or unknown when the H-1B petition was
first filed,” he said.
Roy Maurer is an online editor/manager for
Follow him @SHRMRoy
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