U.S. immigration law requires that a U.S. H-1B employer must file an amended H-1B petition if there is a material change in the terms and conditions of the H-1B employment. However, prior USCIS informal opinion letter or guidance provided little guidance on the types of changes that would constitute a material change. In the event of a change of employment location, an informal USCIS opinion letter issued in 2003 in response to a letter seeking clarification stated that if the worksite was changed to a new location not covered in the original H-1B I-129 but is covered by a certified LCA which was in place prior to the employee’s move to the new location, an amended H-1B is not required “as long as the Labor Certification Application (LCA) has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligation are met.”
On April 9, 2015, the Administrative Appeals Office (AAO) published a precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), stating the rule requiring an H-1B employer to file an amended H-1B petition if there is a change in worksite not covered in the original LCA. AAO’s decision held that a change in the beneficiary’s authorized place of employment to a geographical area not covered in the original LCA is a “material change” and 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.”
It is not yet clear if this holding will be applied retroactively to changes in worksites that took place prior to AAO’s decision. Although retroactivity, if found applicable, may be challenged procedurally under Administrative Procedure Act (“APA”), a more specific USCIS guidance is much needed on the definition of “a material change” and the effective date for the AAO decision .