If H-1B Work Location Changes, Employers Now Must Amend Petitions

By Roy Maurer Apr 23, 2015
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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 immediately.

Background

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.”

Going Forward

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 relocations.

“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 SHRM.

Follow him @SHRMRoy

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