H1B Amendment Requirement for Change in Job Location07 Sep 2012
The American Immigration Lawyers Association (AILA) continues to seek clarification from the U.S. Citizenship and Immigration Services (USCIS) regarding the need to amend the H1B petition for a worker whose work location has changed. As explained in this MurthyDotCom NewsBrief, expectations are clearly shifting from what was longstanding practice and policy in such situations. Employers of H1B workers likely to be relocated during their employment must carefully consider the best methods for adapting to these policy changes.
Longstanding Policy and Practice
As explained previously to our readers, and discussed by senior USCIS officials during AILA meetings and conferences, the longstanding policy and interpretations pertaining to H1B workers allowed for employee relocations without the mandate for amending the H1B petition. [See MurthyDotCom InfoArticle, Amended H1B Petitions.] Under Legacy INS guidance and the Adjudicator’s Field Manual, H1B amendments are not required if there are no other material changes in the terms and conditions of employment. It is necessary to obtain a certified labor condition application (LCA) for the new location, posted in accordance with the regulations, prior to the relocation of the H1B employee.
FDNS Site Visits of H1B Work Locations: Updated LCA Insufficient
Despite the interpretation and guidance described above, the practice of moving employees without filing the H1B amendment, at the very least, has been called into question over the past few years. Typically, problems arise when there is a site visit to the employment location provided in the H1B petition. The LCA is only filed with the U.S. Department of Labor (DOL); thus, without an amended H1B petition, the USCIS receives no notification of a change in work location. Site visits conducted by or through the USCIS’s investigative directorate, Fraud Detection and National Security (FDNS), often occur at an employee’s prior work location. If the FDNS inspector or contractor cannot locate the worker, and has no information available regarding relocation, serious concerns are raised.
This scenario typically leads to a report from the investigator that the H1B worker has not been located at the worksite. This information usually results in the issuance of a notice of intent to revoke (NOIR) the H1B petition, due to noncompliance with the terms and conditions of the H1B petition approval.
NOIR or Denial of the H1B Extension of Status
Issuance of a NOIR, while always serious, would prompt less concern if the employer could be confident that the USCIS would accept proof of the employee’s relocation and new LCA. The CSC, however, has taken a different viewpoint and, in some cases, has revoked the H1B petition even following the employer’s response to the NOIR with proof that the steps outlined in the Legacy INS guidance were taken.
H1B Amendment Required for Any Material Change
The USCIS has issued no clarification on this matter, stating only that it is under review and additional guidance may be issued. Under the regulations, an H1B amendment is required if there has been a material change in the employment terms of the H1B petition. It is clear that the internal policy being applied in most cases is that any such change in the H1B employee’s work location should require the filing of an H1B amendment, as this is a material change in the terms and conditions of employment.
While there has been no change to the official USCIS policy, H1B employers need to understand that they can no longer confidently rely on the practice of moving employees without filing an H1B amendment. This may require substantial changes in the practice of some employers, and will be difficult and expensive for those needing to relocate H1B employees each time there is a change in the project. We at the Murthy Law Firm will continue to keep our readers updated on this important topic.
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