Following the decision of the Administrative Appeals Office (AAO) of USCIS, USCIS has issued a new Policy Memorandum to its employees outlining when an amended H-1B petition must be filed.
On April 9, 2015, AAO clarified that an employer must file an amended or new H-1B petition when a new Labor Condition Application (LCA) for nonimmigrant workers is required due to a change in the H-1B worker’s place of employment. Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). The decision stated:
- “A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to the Department of Homeland Security (DHS) with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R §§214(h)(2)(i)(E)and (11)(i)(A)(2014).”
- “When 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.”
Accordingly, a petitioner must file an amended or new H-1B petition if the H-1B employee changes his or her place of employment to a location that requires a corresponding LCA, even if a new LCA is already certified with the Department of Labor.
A petitioner does not need to file an amended petition if a) there is a move “within the intended area of employment,” b) the placement is short term, and c) the H-1B employee is going to a non-worksite location. Each of these exceptions is discussed in detail in the Policy Memorandum.
The USCIS will exercise its discretion to varying degrees to accommodate petitioners. For petitioners whose H-1B employee moved to a new area on or before April 9, 2015, USCIS will generally not pursue new adverse actions. For petitioners whose employees move after that date, USCIS has created a chart in the Policy Memorandum to provide more specific instructions.