Why it matters
Under what circumstances does an employer need to file an amended H-1B petition? A new precedential opinion from U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) sets forth an employer’s obligation to file an amended petition when a geographical change in worksite occurs. Regulation mandates that H-1B employers must file an amended petition if a “material change” occurs in the terms and conditions of employment of a foreign national beneficiary. In a new decision, the AAO clarified that a change to the geographical area in which an employee works constitutes a material change requiring the filing of an amended petition, basing its conclusion on the principle of worker protection. Any employer with H-1B employees should ensure compliance with the decision and file an amended petition if the worker is relocated to a new worksite.
Simeio Solutions LLC filed a Petition for a Nonimmigrant Worker (Form I-129) to classify a beneficiary as an H-1B temporary nonimmigrant worker pursuant to the Immigration and Nationality Act. Included in the petition: the necessary Department of Labor (DOL) Labor Condition Application for Nonimmigrant Workers (LCA).
The company—which provides information technology services—stated that the beneficiary maintained nonimmigrant status as an F-1 student and was employed by Simeio for post-degree optional practical training.
The Form I-129, the LCA, and an accompanying letter of support all attested that the beneficiary would be employed at a Simeio facility in Long Beach, California, working on an in-house project for a specific client with an annual salary of $50,232. The company did not include an itinerary, nor did it list other worksites. The petition was approved.
Two months later, the beneficiary left the United States and applied for an H-1B visa at the U.S. Embassy in New Delhi, India, based on the approved petition. When contacted by the Department of State, Simeio indicated that the beneficiary was providing services to clients not previously identified in the approved petition. The Embassy then returned the petition for review to the California Service Center Director (Director).
The U.S. Citizenship and Immigration Services (USCIS) officers conducted a site visit at the Long Beach facility where the beneficiary was supposed to be working and found that the address had been abandoned two months after the start date of the beneficiary’s H-1B employment. Further investigation revealed that the beneficiary was assigned to Simeio’s Los Angeles office.
The Director responded with a notice of intent to revoke the approval of the petition. In response, the company submitted a new LCA that provided two worksites for the beneficiary: Camarillo, California, and Hoboken, New Jersey.
These changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition, the Director concluded. Because Simeio failed to file an amended petition with the LCA, the Director revoked the nonimmigrant visa petition.
The USCIS Administrative Appeals Office (AAO) affirmed, following a trail of regulations.
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant worker as “an alien … who is coming temporarily to the United States to perform services … in a specialty occupation described in section 214(i)(1) … who meets the requirements for the occupation specified in section 214(i)(2) … and with respect to whom the Secretary of Labor determines and certifies to the [Secretary of Homeland Security] that the intending employer has filed with the Secretary [of Labor] an application under section 212(n)(1).”
The Act also requires an employer of an H-1B worker to pay the higher of either the prevailing wage for the occupational classification in the “area of employment” or the actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services, pursuant to Section 212(n)(1)(A)(i).
“Implemented through the LCA certification process, section 212(n)(1) is intended to protect United States workers’ wages by eliminating economic incentives or advantages in hiring temporary foreign workers,” the AAO explained. To promote these worker protection goals, a prospective employer must file an LCA and receive DOL certification before submitting an H-1B petition to the USCIS.
“In the event of a material change to the terms and conditions of employment specified in the original petition, the petitioner must file an amended or new petition with USCIS with a corresponding LCA,” the AAO said, and “immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility” for H-1B status,” by filing an amended petition.
Only one question remained: Does a change in the geographical location of employment of a beneficiary affect the eligibility of H-1B status?
Yes, the AAO said. And because such a change may affect eligibility—requiring a new LCA to be certified by the DOL—it constitutes a material change in the terms and conditions of employment necessitating an amended or new H-1B petition with the corresponding LCA.
Simeio neglected to file the necessary paperwork, the AAO wrote, and affirmed the Director’s decision to revoke the petition.
Section 212(n) of the Act ties the prevailing wage to the “area of employment,” and therefore “a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material for both the LCA and Form I-129 visa petition, since such a change may affect eligibility under 101(a)(15)(H) of the Act,” the AAO said. “If, for example, the prevailing wage is higher at the new place of employment, the beneficiary’s eligibility for continued employment in H-1B status will depend on whether his or her wage for the work performed at the new location will be sufficient. Fundamentally, for an LCA to be effective and correspond to an H-1B petition, it must specify the beneficiary’s place(s) of employment.”
Long Beach, California, was not the same as Camarillo, California or Hoboken, New Jersey, the AAO noted, and the required salary for the two latter locations was approximately $9,000 higher than the first—meaning that the geographical change in the beneficiary’s location did affect his eligibility under Section 101(a)(15)(H).
“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 DOL, with both documents indicating the relevant change,” the AAO wrote. “By failing to file an amended petition with a new LCA, or by attempting to submit a preexisting LCA that has never been certified to USCIS with respect to a specific worker, a petitioner may impede efforts to verify wages and working conditions. Full compliance with the LCA and H-1B petition process, including adhering to the proper sequence of submissions to DOL and USCIS, is critical to the United States worker protection scheme established in the Act and necessary for H-1B visa petition approval.”
The AAO added in a footnote that the decision “clarifies, but does not depart from, the agency’s past policy pronouncements,” and that to “the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded.”
To read the decision in Matter of Simeio Solutions, LLC, click here.