On April 9, 2015, the Administrative Appeals Office (AAO) (appellate agency of United States Citizenship and Immigration Services) rendered a precedential decision that will make it more difficult for employers to relocate H-1B employees across the United States.
In Matter of Simeio Solution, LLC, the petitioner, an IT company, filed an H-1B petition on behalf of a beneficiary. The Form I-129, certified Labor Condition Application (LCA), and support letter indicated that beneficiary would provide in-house services with an annual salary of $50,232.00 at petitioner’s facility in Long Beach, CA. The petitioner did not list any other worksites and did not submit an itinerary. USCIS approved the petition.
After approximately 2 months of working for the petitioner, beneficiary traveled to India for visa stamping at the U.S. Embassy, New Delhi, India. At the consular interview, beneficiary was asked to provide a letter from the petitioner regarding the work to be performed. Petitioner did not submit the documentation, and instead, indicated beneficiary provided services to clients not previously identified in the approved petition. The Embassy returned the petition to USCIS stating that during the consular interview, beneficiary and petitioner presented information not available to USCIS at the time the petition was approved.
USCIS conducted a site visit at petitioner’s Long Beach, CA facility and reported that it could not locate petitioner’s office at the address identified in the petition and LCA and that the petitioner had vacated the facility 2 months after the start date of beneficiary’s H-1B employment. USCIS contacted the Form I-129 petition signatory who indicated that the company currently used an employee’s home as the company address. USCIS officers visited the company’s newly provided address and learned from the employee/resident that the petitioner employed approximately 45 to 50 people, that the beneficiary was assigned to the petitioner’s Los Angeles office, and that all employees assigned to that “office” either worked from home or from a client worksite. USCIS issued a notice of intent to revoke the H-1B petition and allowed petitioner to provide a rebuttal.
In response, the petitioner confirmed that the beneficiary was no longer working on the project or at the location specified in the original petition. The petitioner stated that the beneficiary’s services had been used for “various end users” and that he had worked either out of the petitioner’s Long Beach office or from his home office. With its response, the petitioner submitted a new LCA that provided two new worksites,—in Camarillo, California (Oxnard-Thousand Oaks-Ventura Metropolitan Statistical Area), and Hoboken, New Jersey (New York-Newark-Jersey City, NY-NJ-PA Metropolitan Statistical Area)—as the beneficiary’s places of employment. Both worksites are located in metropolitan statistical areas different from the worksite listed on the original petition.
The Director concluded that the changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. Pursuant to 8 C.F.R. § 214.2(h)(2)(i)(E), the petitioner was required to file an amended Form I-129 corresponding to a new LCA that reflected these changes. The petitioner failed to file an amended petition, and accordingly, the Director revoked the nonimmigrant visa petition and certified the decision to the AAO.
The LCA currently requires petitioners to describe: 1) the number of workers sought; 2) the pertinent visa classification for such workers; 3) their job title and occupational classification; 4) the prevailing wage; 5) the actual rate of pay; and 6) the place(s) of employment. Because the prevailing wage is 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.
In this case, the Form I-129 and the originally submitted LCA identified the Long Beach, California, facility as the place of employment. The LCA did not cover either the Camarillo, California, or the Hoboken, New Jersey, addresses. In addition, the petitioner attested on the Form I-129 that it would pay the beneficiary a salary that was approximately $9,000 less than would be required for the new places of employment (in Camarillo, California, and Hoboken, New Jersey). Having materially changed the beneficiary’s authorized place of employment to geographical areas not covered by the original LCA, 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, with both documents indicating the relevant change. The employer’s failure to do resulted in the AAO’s denial.
Q&As
Q1: Is an Amendment required if H-1B employee moves to a new worksite that was not specified in the initial petition? Yes.
Q2: Is an Amendment required if H-1B employee moves to a new worksite that was not specified in the certified LCA submitted with the initial petition? Yes.
Q3: With the Amendment, does the employer need to file a new, Certified LCA? Yes.
Q4: Does the Employer need to file an Amendment if the new location is in the same MSA as listed on the LCA currently in effect? Unclear. Although the wages may be the same, other “material changes” may require an Amendment such as change in supervision or change in control of the beneficiary at the new location, or other changes in the employer-employee relationship. Best practice may be to file an Amendment for each worksite where an employee may work.
Q5: For an H-1B transfer, if the I-129 does not list the new worksite location, but the LCA for the new worksite location is certified by the DOL before the employee’s move, does the employer still need to file an Amendment? Yes.
Q6: What will happen if an H-1B Amendment is required and the employer does not file it? H-1B approval will be revoked by USCIS. Additionally, any subsequent H-1B extension could be denied.
Q7: When does this new requirement take effect? Immediately (April 30, 2015)
Q8: Is this requirement retroactive (apply to beneficiaries who have already been relocated to a different location that was listed in the original petition? USCIS has not addressed this issue at this point. Since this is the case, it may be advisable for employers to file amended petitions to cover prior location changes as soon as possible (or beneficiaries may be deemed to have fallen out of H-1B status).
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