Court upholds USCIS regulation requiring amended petition for change in location
The filing of an H-1B petition requires submission of a Labor Condition Application certified by the U.S. Department of Labor. The LCA certifies, among other things, that the H-1B beneficiary will be paid the prevailing wage for the applicable Occupation Title in the area of intended employment.
The regulations provide that if there is a “material change” in the terms and conditions of employment or training, a new or amended petition with a new LCA must be filed.
According to a recent decision from a federal appellate court, "material change" can include a change in the geographical location of the position.
ITServe Alliance v. DHS
In 2015, the Administrative Appeals Office of the U.S. Department of Homeland Security revoked an employer’s H-1B petition after determining during an audit that the employee’s places of employment changed to geographical areas other than those specified in the LCA.
A trade association representing employers challenged this decision. But last week the U.S. Court of Appeals for the District of Columbia Circuit upheld the regulation and 2015 guidance from the U.S. Citizenship and Immigration Services interpreting the regulation.
The material change regulation states as follows: “The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition.”
The Administrative Appeals Office found in 2015 that a change in the place of employment was “material” if the change required the filing of a new LCA. (This may seem circular, but there are a few situations, described below, where an employee may change location and not be required to file a new or amended LCA.)
ITServe Alliance challenged this interpretation on two main grounds:
First, ITServe Alliance said that the Administrative Appeals Office decision was an unlawful rulemaking that did not comply with the notice-and-comment procedures prescribed by the federal Administrative Procedure Act.
Second, ITServe Alliance questioned the statutory authority of the USCIS to require that an amended petition be filed when an employee moves to a new worksite.
With respect to the first issue, the Court said that the Administrative Appeals Office decision was an administrative adjudication between two parties and that it was permissible for new principles to be announced as part of the decision in the proceeding.
With respect to the second issue, the Court found that the USCIS did have authority to determine when a new or amended LCA had to be filed: “USCIS may consider LCA-related issues in exercising its own authority to approve, disapprove, or revoke H-1B petitions, [and] it may require new or amended petitions corresponding to changes in the place of employment that necessitate the filing of new LCAs.”
Tips for employers
An amended petition with new LCA must be filed when an H-1B employee is moving to a new job location not in the same area of intended employment specified in the filed LCA. Area of intended employment “means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.” A location within either a Metropolitan Statistical Area or Primary Metropolitan Statistical Area “is deemed to be within normal commuting distance of the place of employment.”
Even if the individual is working outside the MSA or PMSA, a new LCA may not have to be filed if there are no other changes in the terms and conditions of employment, and if, for example, the change in worksite location is only short-term for employee development purposes, or short-term travel is part of the job.
But otherwise, if the employee’s job moves to a location outside normal commuting distance, failure to file an amended petition with a new LCA could lead to revocation of the H-1B petition, endangering the employee’s legal status and potentially subjecting the employer to fines and penalties for the unlawful employment of a foreign national.
