While the 21st Century is a time of globalization, a time where with telecommuting and virtual offices there is a re-examination of whether there is still significance to your geographical location, United States Citizenship and Immigration Services (USCIS) is decidedly “retro” in firmly planting its feet in the 20thCentury, pursuant to an AAO decision (Matter of Simeio Solutions, LLC) published April 9, 2015, which declares that any worksite change which triggers the requirement to obtain a labor condition attestation requires an employer to amend the underlying H-1B petition.

The real irony is that this was never USCIS or former INS policy, even during such times when geographical location was more meaningful than it is now.

USCIS initially intended to apply this policy retroactively. However, it backed off and in guidance published on July 21, 2015, coyly announced that it would “generally not take adverse action against employers that failed to file amended petitions”, so you as an employer are now left to decide what “generally” means. The guidance provides a new deadline of January 15, 2016 for those that decide to file amended petitions and for those where the geographical location change occurs between April 9, 2015 to August 19, 2015 . [See Proskauer Client Alert http://www.proskauer.com/publications/client-alert/h-1b-update-is-an-employer-required-to-file-an-h-1b-amendment-petition-due-to-a-change-in-work-location/ ]

I guess those companies that have a high volume of geographical changes will do the cost benefit analysis and rely on “generally” and not amend. Other companies where volume of change is much more modest may likely choose to play it safe and file amended petitions.

This is a sorry state of affairs where a government agency relies on “ambiguity” as a tool of enforcement. USCIS has always had a hard time finding a way to deal with change and what constitutes a material change and it is understandable that as an agency, it feels that the difficulty in tracking where an H-1B employee undercuts its enforcement prerogatives, such as its FDNS “site visit” program.

The Simeio case itself involved an FDNS site visit where the H-1B beneficiary was not found at the designated site, accidentally discovered, only because of the site visit.

However, distorting the H-1B program by requiring the filing of an amended petition every time an employee moves from one location to the other seems to be a clumsy, cumbersome and inefficient way to notify USCIS of a geographical change in light of the burden of this process, including filing fees, legal fees, and document preparation. All this just to notify USCIS of a relatively simple, routine change in the course of business!

The AR-11 Model

Ironically, USCIS already has a program in place, which requires nonimmigrants in the United States to notify the agency when they change geographic locations via a simple form completed on paper or online, Form AR-11. The program works quite well. I see no reason why this very same concept cannot be adopted to a notification requirement for an H-1 job location change, avoiding the disproportionate burden placed upon all by insisting on an H-1B amendment every time a there is a change in job locations .

Maybe then, USCIS can protect its enforcement prerogative while still remaining a citizen of the 21stCentury!