In an April 9, 2015, precedent decision, the Administrative Appeals Office (“AAO”) affirmed the California Service Center’s decision to revoke an H-1B petitioner’s approved petition for failure to file an amendment to report a change in the beneficiary’s employment location. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). The California Service Center is a regional processing center of the U.S. Citizenship and Immigration Services (USCIS). The decision means that employers are required to file a certified LCA, as well as an amended H-1B petition, prior to moving an employee to a new work location, which represents a departure from prior USCIS guidance.
Prior to this decision, an H-1B employer was not required to file an amended H-1B visa petition for a change in geographic employment, provided the following conditions were met:
- A labor condition application (“LCA”) was filed and certified for the new location prior to the employee’s move to the new location;
- The LCA was posted in compliance with applicable Department of Labor regulations;
- All other wage an hour obligations are met; and
- There have been no other material changes to the terms and conditions of employment.
See October 23, 2003, Efren Hernandez letter, U.S. Dept. of Homeland Security, USCIS.
However, Matter of Simeio Solutions, LLC creates new requirements. In that case, the petitioning employer obtained approval of its H-1B petition based upon a certified LCA from the U.S. Department of Labor for a worksite located at the employer’s facility. Subsequent to the initial H-1B approval, the employer changed the H-1B employee’s worksite location from the facility identified on the approved petition and did not file an amended petition. The petitioner did, however, obtain a newly certified LCA for the new employment location not covered by the previous LCA certification. The Director of the California Service Center, where the H-1B petition was filed, concluded that the change in employment location constituted a “material change” to the terms and conditions of the employment as stated on the original H-1B petition and revoked the H-1B petition that had been approved for the employee. The Director’s rationale was that revocation was necessary due to the employer’s failure to file an amended H-1B petition.
The employer appealed to the AAO and the AAO sided with the Service Center. In its decision, the AAO stated that the new employment locations at issue were not covered by the initial LCA. The AAO reasoned that because the prevailing wage requirements are tied to the area of employment, “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 the Form I-129 visa petition, since such a change may affect eligibility under section 101(a)(15)(H) of the Act.” See Simeio Solutions, LLC, 26 I&N Dec. 542 at 548. In effect, the AAO concluded that a change in employment location not covered by the initial LCA in turn creates the material change in the terms and conditions of employment requiring the petitioning employer not only to obtain a certified LCA for the new employment location, but also to file an amended H-1B petition with USCIS.
Employers should note that the AAO decision does not address changes in a worksite location to a new location also covered by the existing LCA. Under current guidance, employers are not required to file a new LCA or an amended H-1B visa petition for a new employment location that is also covered by the existing LCA. A new employment location is covered by an existing LCA if it is within the same Metropolitan Statistical Area (“MSA”) or area of intended employment as the employment location identified on the existing LCA. The area of intended employment has been defined as within normal commuting distance of the place of employment. Therefore, employers are not required to file a new LCA nor an amended H-1B if the new worksite is located within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.
Employers should always consult their immigration advisor regarding all changes in the terms and conditions of employment. In light of the AAO’s recent decision, employers should be particularly aware of the possible impacts of changes in the terms and conditions of employment, including those which relate to changes in workplace location.