Before moving an employee with an H1-B visa to a different office or worksite, the employer may have to file an amended H1-B petition, according to a recent US Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) decision. That’s because employee relocations often trigger the need for a new Labor Condition Application for Nonimmigrant Workers (LCA), and changes to the LCA can affect an employee’s H1-B eligibility.
What Is a Labor Condition Application?
An LCA requires an employer to certify to the US Department of Labor (DOL) that:
- H1-B employees are being paid, at minimum, the prevailing local wage and the same amount as other employees doing the same work.
- H1-B employees are working under the same conditions as other employees and hiring an H1-B employee will not negatively affect the working conditions for other employees.
- There is not a strike, lockout or work stoppage at the H1-B employee’s intended work location on the day of the application.
- Existing workers have been or will be notified of the LCA and the prospective H1-B employee has been provided a copy of the application.
When Is An Amended H1-B Petition Required?
According to the AAO’s April 9, 2015, decision, an amended H1-B petition is required if:
- The H1-B visa holder is moving to a new job site located outside of the metropolitan statistical area (MSA) or area of intended employment listed in the existing H1-B petition for more than 30 days, and/or
- There is a material change in the employee’s job terms and conditions.
Under the ruling, employers can relocate employees immediately after filing the amended H1-B petition. You don’t need to wait for the USCIS to rule on the petition.
Why Are the Amended H1-B Petition and New LCA Required?
This new USCIS guidance arises in the wake of the AAO’s decision in Matter of Simeio Solutions, LLC. In that case, the original Form I-129 Petition for Nonimmigrant Worker listed the prospective employee’s job location as Long Beach, Calif. In reviewing the petition, USCIS employees visited the Long Beach office only to learn that Simeio Solutions no longer operated there. The company submitted a new LCA to the DOL clarifying that the employee would work from two worksites in Camarillo, Calif., and Hoboken, NJ. However, Simeio Solutions failed to file an amended I-129 with the USCIS.
The new LCA and amended H1-B petitions are required, in part, to ensure an employee is paid the prevailing wages for the location in which he or she is working. More specifically: The federal government wants to ensure companies don’t hire foreign employees to work in the United States at lower salaries than US employees.
In the case of Simeio Solutions, the prevailing wages in Long Beach (part of the Los Angeles-Long Beach-Santa Ana, Calif., MSA) were lower than the prevailing wages in Camarillo (part of the Oxnard-Thousand Oaks-Ventura, Calif., MSA) and in Hoboken (part of the New York-Newark-Jersey City MSA). The new job location is a material change that affects the terms and conditions of the worker’s employment, and failing to file an amended I-129 – which serves to notify the USCIS of material changes to the worker’s employment – is grounds for revocation of the company’s H1-B visa petition.
It’s important to underscore that the new LCA and amended H1-B petition are required even if employee’s salary remains the same and regardless of whether the worker is moving to a location with a higher or lower prevailing wage.
Instances When An Amended H1-B Petition Isn’t Required
In some relocation circumstances, employers can avoid filing amended H1-B petitions.
Employers don’t need to amend the petition if the employee is moving to a different location within the metropolitan statistical area or area of intended employment listed in the original H1-B petition.
For example, the Chicago metropolitan statistical area includes Cook, DeKalb, DuPage, Grundy, Kane, Kendall, Lake, McHenry and Will Counties in Illinois, as well as Wisconsin’s Kenosha County and Indiana’s Jasper, Lake, Newton and Porter Counties. If the original approved H1-B petition identified Chicago as the employee’s work location and the worker subsequently relocates to Northbrook, no amended H1-B petition is required because the employee is remaining within the metropolitan statistical area. However, if the original H1-B petition listed the employee’s location as Milwaukee and the employee subsequently relocated to Chicago, an immigration attorney would have to file a new LCA and an amended H1-B petition.
If the employee is relocating temporarily – typically less than 30 days – employers can also avoid filing a new LCA and amended H1-B petition. In certain instances, the short-term placement period can be as long as 60 days. To avoid filing a new LCA and amended H1-B petition in these cases, certain conditions must be met. Your immigration lawyer can help ensure the company is in full compliance.
Lastly, employers don’t need to file a new LCA if the employee is working at what the USCIS calls a “non-worksite location.” For example, facilities such as hotels and convention centers where training or management meetings are held are considered non-worksite locations. Similarly, if the employee’s job requires short-term travel to other locations (for reasons other than strikebreaking), employers don’t need to get a new LCA or file amended H1-B petition for temporary, short-term visits to other job sites.