H1B Amendment Required for Most Worksite Changes17 Apr 2015
On April 9, 2015, the Administrative Appeals Office (AAO) issued a precedent decision that is expected to prompt many H1B employers to change some long-held practices. The case, Matter of Simeio Solutions, LLC, addresses the issue of relocating an H1B worker to a worksite not listed in the H1B petition or labor condition application (LCA). The AAO decision ultimately means that if an employer wishes to move an H1B worker to a jobsite “…not covered by the original LCA, the petitioner [is] required to immediately notify USCIS and file an amended or new H1B petition, along with a corresponding LCA…”
Facts of the Case
Simeio Solutions filed an H1B petition on behalf of a foreign national who, at the time, was working pursuant to F-1 optional practical training (OPT). In the H1B petition, Simeio Solutions indicated that the worker would be employed at the company’s office location in Long Beach, California, and would be exclusively providing services to a specific company client. Accordingly, the approved LCA submitted with the H1B petition was for the Los Angeles-Long Beach-Santa Ana metropolitan statistical area (MSA). The petition was approved and the beneficiary was granted a change of status to H1B.
After working in the H1B position for a couple of months, the beneficiary traveled to India and applied for an H1B visa foil (i.e. ‘stamp’). The consular officer was not satisfied with the evidence presented by the worker during the visa interview and the petition was eventually sent back to the U.S. Citizenship and Immigration Services (USCIS) for review. The USCIS conducted an investigation and performed a site visit, and the agency determined that, after the employee had started working in H1B status, he had been moved to various different client projects located in other MSAs. The USCIS went on to revoke the H1B petition, concluding that a new LCA and amended petition were required because “…the changes in the beneficiary’s places of employment constituted a material change…”
AAO Rules that H1B Amendment Needed for Most Changes in Work Location
On appeal, the AAO ruled against the petitioner, noting that if the beneficiary is to be moved to a new job location that requires a new LCA (i.e. A worksite that is neither within normal commuting distance nor within the same MSA indicated on the existing LCA,) this is considered a “material change.” And, when a material change occurs, an amended or new H1B petition, with corresponding LCA, is mandatory.
The idea that an amended petition may be necessary based on a change in job location is hardly a new concept. As explained in H1B Amendment Requirement for Change in Job Location (07.Sep.2012), the USCIS has been moving in this direction for a number of years. However, this decision by the AAO serves to clearly make this rule the law-of-the-land.
H1B employers need to take careful note of this decision by the AAO. Companies – especially those that frequently move H1B workers from one job location to the next – need to review current practices and ensure safeguards are in place help avoid running afoul of the law. The Murthy Law Firm is available to assist companies in managing all of their immigration needs.
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