New Petition Required When Work Location Changes
Changing years of established policy, the Administrative Appeals Office (AAO) ruled in a precedent decision on April 9, 2015 that the beneficiary of an H-1B petition working in the United States cannot change geographical locations outside of the labor condition application (LCA), or applications filed with the beneficiary's original petition, before a new LCA is approved and a new or amended H-1 petition is filed with the United States Citizenship and Immigration Services (USCIS). See: Matter of SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015).
Before this decision, it was established practice, confirmed by officials of USCIS going back for years, that a change in geographical location would not require the filing of an amended H-1B petition, as long as there was an approved LCA in place for the new location.
Here, the AAO found that failure to submit a pre-existing labor condition attestation to USCIS for certification with respect to a specific worker "may impede efforts to verify wages and working conditions."
This decision would appear not to impact geographical changes that do not require the filing of the new LCA, such as relocation within commuting distance of the original labor condition application.
USCIS' reliance on "site visits" as an investigatory tool has increased over the years and geographical changes and relocations impede DHS' ability to track H-1B visa holders. Unfortunately, this decision fails to take note of the practical concerns of businesses, which must adapt to servicing clients cross-country and accommodating employees who would prefer to telecommute.
As a result of this decision, many businesses are already out of compliance and must take steps to comply with this very significant new burden. Clients should contact our Immigration Practice Group for consultation and advice on this major change to the H-1B landscape.
USCIS Ran Lottery for Fiscal Year 2016 on April 13
On April 7, United States Citizenship and Immigration Services (USCIS) announced it had received enough H-1B petitions to reach the cap of 65,000 for Fiscal Year (FY) 2016, as well as the 20,000 limit for those petitions filed under the U.S. advanced degree exemption.
On April 13th, USCIS confirmed it had received approximately 233,000 petitions between April 1, 2015 and April 7, 2015.
This is the third consecutive year that the H-1B quota has been reached during the first five business days of April. Before that, the last time the cap had been reached during the first week was in April 2008 for FY 2009. The decreased demand after FY 2009 was due to the effects of the financial crises. H-1B petition submissions have increased each year, as outlined below:
Click here to view the table.
On April 13, USCIS first conducted a lottery for those petitions filed in the advanced degree exempt category. All those not selected were then part of the general lottery for the remaining 65,000 H-1Bs. The petitions that were not selected in the lottery process will be rejected and their filing fees returned, unless there is found to be duplicate filing.
As previously announced, USCIS will begin premium processing of FY 2016 H-1B petitions no later than May 11.
We appreciate that, during this period, employers and foreign national employees will be anxious while awaiting the lottery results. Proskauer will continue to update its clients directly and through alerts as to H-1B cap developments.