Immigration Planning in 2012 (Part 2 of 2)

Parts 1 and 2 of this article examine some of the major immigration developments in 2011, and analyze the potential impact of those developments for 2012. We previously discussed the forward movement of the EB2 India and China cutoff dates in the visa bulletin. Here we look at related matters in the H1B category: site visits and investigations, and H1B amendments in which there is relocation of the employee’s worksite.

Increased Enforcement by USCIS, ICE, and DOL

One of the defining themes for 2011 has been an increase in enforcement and investigation activity by the U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and the U.S. Department of Labor (DOL). USCIS investigators visit the worksites of H1B workers. These investigators generally have copies of H1B petitions and knowledge of the content of each filing. When they arrive at a worksite, they primarily ask questions about the duties performed by the H1B employee and the wages paid to the employee.

More recently, we at the Murthy Law Firm have become aware of instances in which investigators ask detailed questions regarding the supervision of the H1B employee. This line of questioning is particularly troubling. It relates to the January 2010 Neufeld Memorandum on the employer-employee relationship, which has caused many problems for IT consulting companies. This seems to indicate an emphasis on this matter at the USCIS investigative level, even though the issue would have been reviewed by the USCIS prior to approval of the H1B petition in all but the oldest cases.

Common Problem with H1B Employee’s Relocation

A common problem that arises with regard to site visits concerns H1B employees who work at client locations. These workers often change clients and/or locations during the course of their H1B employment. For many years, it has been the common legal interpretation and understanding that, when this occurred, it was not necessary to amend the H1B petition. Most employers simply obtained a new labor condition application (LCA) from the DOL for the new work location. The USCIS is not notified of the change unless an H1B amendment is filed. Therefore, the USCIS has no way of knowing that an H1B employee has been relocated, based solely on a new LCA.

The USCIS investigator conducts the site visit based upon the location identified in the H1B filing. If the employee has been relocated, the investigator does not find the employee at the address stated as the location of employment in the H1B petition. The personnel at the client location may not even be familiar with the individual. This results in the USCIS investigator reporting that the H1B employee is not employed pursuant to the H1B petition.

When the USCIS is unable to confirm the H1B employment, it generally sends an eMail to the employer or to the employer’s attorney, asking for confirmation of ongoing employment and the location of that employment. These eMail inquiries typically have deadlines of only two or three days. If the employer can satisfactorily respond, this might resolve the issue. If not, a notice of intent to revoke (NOIR) the H1B petition may be forthcoming, which places both the employer and the employee in serious jeopardy.

H1B LCA Update vs. H1B Amendment

As described above, one of the common problems faced by H1B consulting employees is a USCIS site visit following work relocation. The USCIS is not made aware of the filing of a new LCA for the new worksite location, and the investigator, therefore, goes to the original worksite.

It is becoming increasingly clear that it is no longer safe to rely solely on updating the LCA in many instances when an H1B employee changes work locations. In addition to concerns about site visits, we have also begun to see new wording in USCIS requests for evidence (RFEs), asking for proof of H1B amendments for any relocation of the employee during the H1B petition validity period. The General Counsel of the USCIS California Service Center also has publicly indicated the opinion that an amended H1B is required in addition to obtaining a new LCA. It is possible that more definitive guidance on this matter will be released by the USCIS later in 2012, but this is not a certainty.

Background on Filing LCA Amendments for H1Bs

The legal issues on the appropriate procedures for relocating H1B employees are somewhat complex and beyond the scope of this article. For many years it generally was understood that H1B workers could be relocated based on updated LCAs. The USCIS policy, however, is clearly moving to a more restrictive interpretation.

When planning for 2012 and beyond, therefore, employers who do not wish to battle the USCIS on this matter should shift from the traditional practice of relying on LCA updates when moving their employees. Many companies are reluctant to adopt the practice of filing an H1B amendment, as it is often administratively impractical, and is significantly more expensive. However, without an H1B amendment, there is increased legal exposure for both the employer and the employee if the USCIS determines that an employer should have amended the petition.

Conclusion

It is always important to identify trends and make any needed changes. The emerging trend toward restrictive interpretations regarding the filing of H1B amendments is having an impact on H1B practice for employers, particularly IT consulting companies. If this policy shift continues, it is likely to require changes for many employers in 2012 and beyond.

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