• The USCIS Decision on H-1B Location Changes: Answers to Frequently Asked Questions
  • April 14, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • As we have reported, USCIS’s Administrative Appeals Office yesterday ruled that employers must file an amended petition with the agency when an H-1B employee moves to a new worksite that was not specified in the initial petition and an accompanying labor condition application (LCA) certified by the Department of Labor.

    The decision overturned longstanding guidance and has immediate effect. But in practical terms, there are many open questions about the impact of the decision on H-1B employers and how USCIS will enforce the new requirement.

    Fragomen and its business immigration advocacy partners are seeking further guidance from USCIS. In the meantime, the following are our preliminary answers to frequently asked questions about the decision.

    When do USCIS rules require an employer to amend an H-1B petition? How does the AAO decision affect those rules?

    Under longstanding USCIS regulations, an amended petition is required whenever there is a “material change” in the terms and conditions of an H-1B beneficiary’s employment. This includes significant changes in job duties and terminations of H-1B employment, among other circumstances.

    Yesterday’s decision clarified that a worksite location change is a material change mandating an amended petition when the LCA required to support the H-1B worker’s employment in the new location was not submitted to USCIS with the original H-1B petition. Thus, the decision requires employers not only to obtain an approved LCA from DOL for the new location, but also to file the approved LCA covering the new location with USCIS through an amended H-1B petition.

    Should employers suspend H-1B location changes that are already in process until they are able to file amended petitions?

    From a business perspective, it may not be practical to suspend certain H-1B location changes that are in process and have met prior agency guidelines. But employers should work to file amendments as soon as possible after new location changes to minimize the risks of noncompliance with the new policy. If no amendment is filed, the employer could face the denial of a future application to extend the beneficiary’s status and revocation of the H-1B petition. A consistent failure to file amendments in accordance with the new policy could also jeopardize the employer’s ability to participate in the H-1B program.

    For future location changes, must an employer wait for the amended petition to be approved before transferring the H-1B employee to the new worksite? What kinds of evidence must be submitted with an amendment to reflect a new worksite location?

    The AAO decision suggests that the amended petition and new LCA must be submitted before the H-1B employee can move to a new worksite location and begin working there. The decision does not explicitly require petition approval before the move.

    Employers should be prepared to carefully document the new location. If the new worksite is an end-client location, the employer may need to submit evidence to demonstrate that the employer continues to maintain the right to control the H-1B employee and that there is sufficient work available to justify approval of the amended petition.

    How does the decision affect H-1B location changes that have already occurred?

    As noted above, the AAO decision took effect immediately, but it is not yet clear how it will affect location changes that occurred while USCIS’s previous guidance was in place. We are seeking clarification from the agency.

    If USCIS decides to apply the decision retroactively, employers may need to file amendments covering prior location changes. In the event of retroactive application, employers will need to work closely with their Fragomen professionals to identify the H-1B employees affected.

    The decision could also affect employers who receive an administrative site visit from USCIS’s Fraud Detection and National Security unit. If a site visit occurs after an H-1B employee has moved to a new location and an amended petition has not been filed, USCIS could attempt to apply the new AAO decision retroactively and issue a notice of intent to revoke the H-1B petition. In the past, employers have usually been able to overcome revocation by filing an amended petition after a site visit.

    Is an amended petition always required when an H-1B employee changes to a new worksite?

    In most cases, yes. If an H-1B employee moves to a new worksite that is not covered by the initial H-1B petition and accompanying LCA(s), an amended petition is required. The AAO decision states very clearly that simply having a new LCA in place before the move will no longer suffice.

    One possible exception: when the H-1B employee moves to a different worksite within the same geographic area already covered by an LCA submitted with the beneficiary’s initial H-1B petition. The Department of Labor has long taken the position that a certified LCA applies to all worksites within the geographic area it covers, so long as notice is provided at the new worksite. Even in such situations, however, USCIS may still require an amended petition if other material aspects of the H-1B employment have changed, e.g., a material change in job duties or a new assignment that materially affects the nature of the H-1B employer’s right to control the H-1B worker.

    Given the significant impact of the AAO decision on certain businesses, will USCIS give employers time to comply?

    Normally, when USCIS announces a change in a regulation or policy, it gives employers lead time to comply. It is rare for the agency to announce an immediate change through an administrative decision, particularly when the change will have a significant impact on an employer’s business procedures and immigration program.

    Fragomen and its business immigration advocacy partners will be working to convey to USCIS the watershed effect of the decision. Advocates will stress the importance of clear guidance and a reasonable implementation period that will minimize business disruptions for employers.