USCIS Reviewing Need for Amended H1Bs
The U.S. Citizenship and Immigration Services (USCIS) recently confirmed its current examination of the circumstances under which employers must file amended H1B petitions for their employees. This is a matter of great importance to many employers of H1B workers. The key questions involve whether the USCIS views it as necessary to amend H1B petitions when there has been a change in the employee's work location. As explained here for the benefit of MurthyDotCom and MurthyBulletin readers, there is conflicting guidance on this issue.
The USCIS Headquarters, in answer to questions posed by the American Immigration Lawyers Association (AILA), confirmed that the USCIS is reviewing exactly when employers must file amended H1B petitions to reflect any change in worksite location for employees. Recently, there have been clear indications that some within the USCIS interpret the regulations so as to require an amended H1B petition whenever employees are relocated outside of the area covered by the labor condition application (LCA) initially filed with the H1B petition. The current guidance and long-standing practices in this area are more generous with respect to this issue. Thus, employers face uncertainty.
Need for Amended H1B Petitions Growing
We at the Murthy Law Firm alerted our readers previously to the potential need for filing amended H1B petitions in a variety of employment situations that fall within the regulatory definition of a material change in the position. Such changes typically include the H1B worker's job duties and, in some instances, compensation and location changes. This is discussed in our NewsBrief, Immigration Basics: Labor Condition Application for H1B Petitions (05.Nov.2010). As explained below, while long-standing guidance has indicated that a change in the job location alone was not a material change that required an H1B amendment, the trend in USCIS analysis on this matter appears to be moving toward a more restrictive approach.
Increased Focus on Amended H1B Petitions: Spring 2010
When the USCIS announced its intention to revise Form I-129, concerns arose regarding indications that an amended H1B petition should be filed if there was a change in job location. In the view of the instructions provided by the USCIS, such is considered a material change to the terms or conditions of the H1B employment. Readers were alerted to this potential shift in H1B policy in our NewsBrief, Proposed Changes to I-129 Would Affect H1B & Other Employers (12.Mar.2010) and NewsBrief entitled, Murthy Takes Action: Comments on Proposed Changes to I-129 (30.Apr.2010). As explained in the latter, it was well-established for nearly a decade of USCIS guidance that an employer need not file an amended H1B petition when an employee changed geographic locations without changing job duties, as long as a new LCA was certified prior to the employee's change in location.
Revised Form I-129 and Instructions Emphasize Amended Petitions
In the instructions accompanying Form I-129, released October 7, 2011, the USCIS states that petitioning employers must declare the basis for the classification of the beneficiary as an H1B worker. The choices for this classification include a change in previously approved employment (with a non-material change) or a formal amended petition (to notify USCIS of a material change from the previous H1B petition). Form I-129 places the H1B employer in the position of declaring whether there has been a material or nonmaterial change - a declaration the USCIS potentially can double-check through its site inspection program. This choice could impact H1B extension requests also, as questions could arise regarding the employer's past compliance with H1B amendment requirements.
Reports of NOIRs on Approved H1B Petitions
Current USCIS practices also indicate a policy shift in the area of H1B amendments. We have seen instances of notices of intent to revoke (NOIR) approved H1B petitions when employers have relocated foreign national beneficiaries from the original work locations listed on the employers' I-129s. Typically in these situations, the employer, following USCIS guidance, has obtained a newly-certified LCA from the U.S. Department of Labor, which reflects the proper occupation, prevailing wage, and new work location. As further confirmed through anecdotal reports, however, there are ongoing situations in which the USCIS seeks to revoke such H1B petitions after USCIS Office of Fraud Detection and National Security (FDNS) site inspections reveal that certain H1B workers are not present at the worksites listed on the most recent I-129s.
Amendments Not So Simple
There are several reasons that the issue of amended H1B filings for employee relocation is significant. In addition to the fact that it is a deviation from the USCIS guidance and corresponding practice, it is impractical. While the term amendment conjures up a fairly simple, brief filing reflecting changes to an earlier filing; this is not the case with H1B petitions. An H1B petition amendment requires filing the same forms and documents as any other H1B petition. It requires payment of the base filing fee each time. This is quite burdensome to employers, when the only significant change is the location of the employment. A realistic, workable, business-friendly system would allow for a simplified, less expensive, notification-type filing.
Employers need to be aware of this issue, and consider the appropriate manner in which to protect themselves during times of policy change. Our attorneys remain available to guide employers regarding H1B matters. We will continue to monitor policy actions and changes, and will alert MurthyDotCom and MurthyBulletin readers to any definitive changes in USCIS policy.
Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.