Employers take note: If you file a new Labor Condition Application (LCA) for an H-1B employee to reflect a change in work location that is outside the metropolitan statistical area (MSA) of the original worksite stated on the LCA and corresponding H-1B petition originally filed for the H-1B employee, then you must also file an amended or new H-1B petition to reflect this material change. Failure to do so will be considered a material deficiency by U.S. Citizenship and Immigration Services (USCIS) and grounds for revocation of the underlying H-1B petition. Employers should also note that USCIS is expected to make 30,000 administrative H-1B and L-1 site visits this year with this being one of the agency’s top investigative priorities, thereby increasing the need for employers to ensure compliance with this rule for all active H-1B employees.
On Friday, April 9, the USCIS Administrative Appeals Office (AAO) issued a restrictive ruling that supports a California Service Center decision to revoke the approval of a petitioner’s H-1B petition due to material changes in the beneficiary’s places of employment which were not communicated to USCIS pursuant to an amended H-1B petition. This decision was designated by the Attorney General, thereby making it a precedent decision that is binding on all officers at USCIS as well as judges in the Department of Justice. The AAO held that a change in the place of employment of a beneficiary to a geographical area requiring a new LCA may affect eligibility for H-1B status, and is therefore a material change under the Code of Federal Regulations. Thus, a new or amended H-1B petition must be filed with all new LCAs filed by employers. This precedent decision, and this new interpretation, necessitating the filing of an amended H-1B petition, is effective immediately and applies to any active H-1B employee who has had or will have a change of work location thereby requiring a new LCA.
The facts of the case highlight the increased effectiveness of government investigations in the H-1B area. Initially, the U.S. Embassy in New Delhi, India, identified a concern with the H-1B petition when the employer and H-1B employee failed to provide additional documentation requested by the Consular Officer. In response, the U.S. Embassy requested that USCIS conduct a formal review of the H-1B petition, leading to USCIS conducting a site visit of the employer’s facility in Long Beach, Calif., the H-1B employee’s listed place of employment in the H-1B petition and LCA. From USCIS’ investigation, it was determined that the H-1B employee’s worksite had changed approximately two months after the start of the beneficiary’s H-1B employment. Thus, USCIS concluded that the petitioner was required to file an amended H-1B petition with a LCA reflecting the worksite changes.
It should be noted that the H-1B employer in this case failed to secure a certified LCA prior to the H-1B employee working at the new worksite locations. The AAO, however, did not consider this to be a differentiating fact, holding that anytime an LCA is filed to reflect a new work location, a corresponding H-1B petition must be filed. This is a significant departure from prior USCIS guidance, including the much relied on 2003 letter from the former director of the Business and Trade Branch of USCIS, Efren Hernandez III, who explicitly stated that as long as the LCA was certified and any other LCA obligations were met prior to the employee starting work at a new worksite, no material changes existed which would require the filing of an amended H-1B petition. Indeed, the AAO decision expressly rejected this 10-year old policy, stating: “To the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded.”
Moving forward, if an employer reassigns an employee to a new location outside the MSA for which the employee’s LCA corresponds with, the employer must file an amended H-1B petition with a new LCA prior to reassigning and transferring the employee. Thus, an employer cannot only file a new LCA prior to an employee starting work in a new location; the employer must file an amended H-1B petition as well.
The AAO left one issue unresolved: whether a new worksite within the same MSA, which only requires the H-1B employer to post new LCA notices, will be considered a material change requiring the filing of an amended H-1B petition. A reasonable interpretation would permit an H-1B employer to post new LCA notices only – and not file an amended H-1B petition – as long as all LCA obligations are met prior to the H-1B employee starting work at a new worksite. A conservative read of the decision warrants the filing of a new or amended H-1B petition even for those cases involving a new worksite in the same MSA.
Following this decision, employers should attempt to list all and every worksite location where an H-1B employee will work throughout the duration of the H-1B petition, including teleworking from home, or office relocations. Employers should consider including an itinerary with their H-1B filings if listing more than one work site location to avoid a challenge from USCIS that employment is “speculative.” Taking this approach will hopefully avoid having to file new or amended H-1B petitions. Employers who have previously moved an H-1B employee to a new location pursuant to a certified LCA, but without filing a corresponding new or amended H-1B should consider doing so now to ensure compliance with this precedent decision. Without a doubt, this decision will have the greatest impact on IT sourcing companies, as they are more likely to employ individuals who work at various client-specific locations throughout the term of their H-1B stay which were unidentified and/or unknown when the H-1B petition was first filed.