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Amended H-1B needed if employee changes job location

Written By The Shapiro Law Group on May 01, 2015

Interpreter Releases states: “One of the visa options for American companies that want to hire foreign workers on a temporary basis is the sponsoring of a foreign national employee for an H-1B non-immigrant visa. The H-1B visa requires the foreign national to be sponsored for a position that requires at least a U.S. bachelors, or its U.S. equivalent, to perform the duties of the job as well as establishing that the sponsored employee has a U.S. degree or its equivalent in a field allowing the employee to perform the duties of the sponsored H-1B job position. The Employer must also obtain an approved Labor Condition Certification for H-1B nonimmigrants, known as an LCA, from the U.S. Department of Labor (US DOL). This certification is where the U.S. employer confirms that the sponsored employee will be paid the higher of the actual or prevailing wage for the location in the United States where the foreign national employee will be employed.”

Previously, the U.S. Citizenship and Immigration Services adjudicators responsible for evaluating these petitions have not been consistent in the past in their interpretations of the guidelines relating to situations where the employee has changed the location where he or she has been employed while in H-1B status.  Until recently, when the foreign national employee has changed the place of employment, the only requirement had been to file a new LCA with the US DOL

Companies frequently transfer H-1B employees from one company worksite location to another company office in a different state.  Additionally, companies often hire H-1B employees to work at third-party client sites for specific projects. For example, a software development company may have an employee working at a client’s jobsite while developing an in-house computer program. The employee performs duties for the client, but receives supervision and wages from the original employer. The nature of such a job often requires more frequent re-location due to the changing nature of clientele and off-site locations. Previously, the mere filing of a new LCA with the US DOL has been sufficient to comply with the government being made aware of the new work location of a company’s H-1B employee.

New requirements regarding government being notified if material change regarding H-1B employee.

In Matter of Simeoi Solutions, LLC, 26 I. & N. Dec. 542 (AAO Apr. 9, 2015), the Administrative Appeals Office held, in a precedent decision, that (1) a change in the place of employment of a beneficiary to a geographical area which requires that a corresponding labor condition application for nonimmigrant worker (LCA) be certified to USCIS with respect to that beneficiary may affect his or her eligibility for H-1B status and is therefore a “material change” for purposes of 8 CFR § 214.2(h)(2)(i)(E) and (11)(i)(A) (2014), and (2) when there is a material change in the terms and conditions of employment, the employer must file an amended or new H-1B petition with the corresponding LCA.

This means a company must now file a new application for an H-1B business visa when information on the original application changes. This is considered a material change, and it may occur when the employer changes the terms of employment, including a wage change, or place of employment, or a change in the employer-employee relationship. These affect the eligibility status of the employee. The requirements for a new petition do not specify whether a location change is substantial enough to signify a material change that affects eligibility if other elements of the employee’s job remain the same.

Immigration lawyers have previously found that some USCIS adjudicators considered a change of workplace location a material change, subject to a new application. However, other adjudicators did not interpret the law in this manner, leading to confusion. The lack of clarity about H-1B visas led USCIS adjudicators to rule that a location change was not enough to warrant an H-1B amendment when an LCA existed for the new jobsite.

The USCIS California Service Center is one of two locations where H-1B applications can be filed. Between 2003 and 2011, this site began to shift toward a stricter interpretation that considered a new job location a material change. The other USCIS Service Center, located in Vermont, did not share this approach, and remained more lenient.

New interpretations affect applications

Recently, in the AAO decision of In Matter of Simeoi Solutions, LLC, 26 I. & N. Dec. 542 (AAO Apr. 9, 2015), an H-1B petition was revoked by the Vermont Service Center when it was discovered that an employee in California was reassigned to an employment location in New Jersey and the company failed to submit a new H-1B petition. The company appealed to the AAO, which upheld the original decision. The AAO cited that the problem lay in the fact New Jersey is in a geographical area not covered by the company’s original paperwork. This would be considered a material change since the pay rate may be different in New Jersey and the employee’s work conditions could have changed.

This new decision means companies should submit a new H-1B application if they send a foreign national worker who is in H-1B status to a location not listed on the original H-1B petition. This applies even when the company is not making any change to the employee’s wages. Interpreting the guidelines for filing petitions for H-1B visa applications and amendments is often a complex matter. An immigration attorney in Illinois may be able to provide advice on the best way to proceed.