According to a recent decision by the Administrative Appeals Office (AAO), employers must file an amended H-1B petition if the worksite of an H-1B employee changes to another geographical area not originally included in the Labor Condition Application (LCA).
The H-1B nonimmigrant visa classification is a used by employers seeking to hire foreign national professionals in a specialty occupation, i.e. a job that requires a college degree. The first step in filing this type of petition is obtaining a certified Labor Condition Application (LCA) from the Department of Labor (DOL). The LCA lists the wages offered to the employee as well as all locations where the employee will work, effectively rendering H-1B employment specific to the job locations listed in the LCA and petition.
In Matter of Simeio Solutions, LLC, the AAO addressed a controversial issue for H-1B employers: what to do when an H-1B employee’s worksite changes. In the past, conventional wisdom among H-1B employers and immigration attorneys alike has been that filing an amended H-1B petition was not always necessary. H-1B employers contended that obtaining a new certified LCA for the H-1B employee’s new job site and posting notice of the new position at the new location before the employee started work there was sufficient under the regulations.
However, the AAO stated differently in its recent decision, saying that it is not enough for employers to file a new certified LCA and post it at the site where the H-1B employee will be working. A new H-1B petition must be filed with United States Citizenship and Immigration Service (USCIS).
Though the decision specifically applies to job site changes outside the geographical area, it does not address whether H-1B employers must file an amended H-1B petition when the change in job site is in the same geographical area. Generally, for LCA and H-1B purposes, the geographical area is the county where the job is located.
In its decision, the AAO cited various sections of the Immigration and Nationality Act to show that a change in the place of employment was a material change to an H-1B petition requiring an amendment.
The case involved an employer that filed an H-1B petition on behalf of an employee. The petition included an LCA certified by the Department of Labor that listed the employee’s place of employment at the employer’s facility in Long Beach, California. The petitioner did not list any other worksites on the LCA, and USCIS approved the H-1B petition.
Following a site visit, USCIS discovered that the employee was working at home. USCIS then issued a Notice of Intent to Revoke approval of the employer’s H-1B petition filed on behalf of the employee. In its response, the petitioner confirmed the employee was neither working on the project or at the location specified in the original H-1B petition, and that he worked out of the petitioner’s home office or from the employee’s office home. At the same time, the company submitted a new LCA with two new worksites. One was in Camarillo, California and the other in Hoboken, New Jersey.
USCIS subsequently revoked the H-1B petition contending that a change to the employee’s place of employment was a material change to the terms and conditions of employment specified in the H-1B petition and that the company was required to file an amended Form I-129 petition with a new LCA that included the changes. The petitioning company appealed USCIS’ decision, which brought the matter before the Administrative Appeals Office (AAO).
In its decision, the AAO stated that a change in the place of employment of a beneficiary to a geographical area requiring a new LCA was a material change. “Where there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA,” the AAO said.
Here, the I-129 petition and original submitted LCA did not cite two areas the employee had worked for the employer, the AAO added. Having materially changed the beneficiary’s authorized place of employment to geographical areas not covered by the original LCA, the petitioner was required to immediately notify USCIS and file an amended or new H-1B petition along with a corresponding LCA certified by the DOL.
With H-1B season coming to a close, many companies are gaining their first H-1B employee. H-1B employers, new and seasoned alike, should take note of this recent decision and should not hesitate to contact counsel when there’s a change in H-1B employment.
For additional information on the Simeio Solutions case and the often confusing requirements of LCAs and when an amended LCA and H-1B petition is required, contact an attorney at Minsky, McCormick & Hallagan, P.C.
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