IS YOUR H-1B WORKER MOVING ELSEWHERE? You may have to file an amended H-1B Petition

The Administrative Appeals Office of the U.S. Citizenship and Immigration Services issued a significant decision last week that overruled prior USCIS practice. In Matter of Simeio Solutions, LLC, the AAO ruled that an employer must file an amended H-1B Petition where the H-1B worker’s place of employment changes to an area not covered by the Labor Condition Application, which is part of the H-1B Petition filing. As a result of the employer’s failure to file an amended Petition, the approved Petition was revoked, terminating the H-1B worker’s right to work for the employer and to stay in the country.

The application document requires the employer to certify that it will pay the greater of the prevailing wage for the occupational classification in the area of employment (defined as “the area within normal commuting distance of the place (address) where the H-1B nonimmigrant is or will be employed”) or the actual wage level paid by the employer for the position.

The law is clear that a material change in the terms and conditions of employment requires the filing of an amended H-1B Petition. However, the issue in Simeio Solutions was whether a change to a different geographical area was “material.” The USCIS had previously taken the position that, although the employer was required to file and post a new LCA before changing the geographical area, it did not have to file an amended H-1B Petition.

The AAO in Simeio Solutions “clarified” this prior USCIS position and said it was overruled to the extent that it conflicted with Simeio Solutions. The AAO reasoned that the change in geography was material because the H-1B Petition, based on the LCA, was tied to employment in a specific geographical area and to the prevailing wage determination applicable to that area.

The LCA at issue in the case said that the employee would be working in the Long Beach, California, area, but a site visit by the USCIS revealed that the employer had vacated the facility shortly after the H-1B employment had begun. After the site visit, the employer filed a new LCA – but not an amended H-1B Petition – for Camarillo, California, and Hoboken, New Jersey.

The prevailing wage for Camarillo/Hoboken was approximately $9,000 more than the amount specified in the LCA and H-1B Petition for Long Beach.

Based on these facts, the AAO found that the changes in the terms and conditions of the H-1B employment could have, and in this case did, affect eligibility for H-1B status. Thus, to continue the H-1B worker’s employment, the employer had to file an amended H-1B Petition with a certified LCA covering the current places of employment.

As a result of the Simeio Solutions decision, employers must file an amended H-1B Petition in addition to a new LCA whenever there is a change of the geographical area of employment. There are exceptions for certain worksites that are not considered to be “new places of employment” – for example, a short-term assignment to another client location.

If you have any questions, please contact any member of Constangy’s Immigration Law Practice Group.

For a printer-friendly copy, click here.