Most H-1B employers know that their H-1B petitions must be amended when there is a "material" change in the terms and conditions of the beneficiary's employment. When only a "minor" change has occurred, the employer can simply notify the USCIS when it files to extend the beneficiary's H-1B status. Historically, the USCIS has always considered a change only in the geographic location of the sponsored position as a minor change as long as a new Labor Condition Application ("LCA") was certified for and posted at the new work site, and the employer satisfied the wage and other terms of that LCA going forward.
Recent developments at the USCIS Regional Service Centers suggest that the agency may be revisiting this longstanding policy and requiring amended petitions whenever a job site changes, even though no formal changes have been announced. This new approach has been brewing since 2009, when the USCIS significantly increased the number of unannounced workplace visits from its Fraud and Detection Agency ("FDNS") to the work sites of H-1B employers. The Form I-129 requires H-1B employers to list the exact address of an H-1B employee's position. The FDNS will conduct site visits at the employment location listed on the H-1B petition. If the FDNS investigator determines that the H-1B beneficiary is no longer working at that work site, it will advise the USCIS Service Center that originally approved the petition. Under current practice, this likely means that the Service Center will issue a notice of intent to revoke ("NOIR") because the H-1B employee was not working at the job location specified in the H-1B petition.
Until recently, employers could rebut the NOIR by showing that a new LCA had been secured and posted in the new location, and that none of the other aspects of the position had changed. In recent months, however, the Service Centers have enforced these NOIRs and suggested that a geographic move in those cases was a material change that required the employer to amend its H-1B petition. While the USCIS policy in this regard appears to be evolving, these recent decisions suggest that employers now should carefully consider whether an amended H-1B petition should be filed when a job location changes or whether simply securing a LCA is acceptable.