USCIS Administrative Appeals Office’s (AAO) recent ruling in the Matter of Simeio Solutions, LLC has important implications for employers with H-1B status workers. In the past, our firm has recommended filing an amended petition if there are substantive changes in the conditions of employment of an H-1B holder. However, whether a change of work location constituted a material change was a grey area. At the very least, an amended LCA was required, but whether or not an amended H-1B petition needed to be filed with USCIS was unclear. CIS previously issued memorandums that went both ways.
Under the new regulation, employers MUST file an amended or new H-1B petition with a corresponding LCA when an H-1B status worker is moved to a new worksite in a geographic location different from the one specified in the initial petition. As per the AAO decision, a change to a different geographic location is considered a “material change” in addition to changes in job duties and terminations of H-1B employment. Petitioners must now file an amended or new petition, with fee, with the Service Center where the original petition was filed. The petition must reflect any material changes to employment that would affect eligibility as originally specified and approved. In the case of an H–1B petition, this requirement includes a new LCA.
Since an H-1B status worker’s wage is tied to the “area of employment,” a change in the beneficiary’s place of employment to a geographic area not covered by the initial LCA is a material change for both the employee’s LCA and Form I-129 visa petition. Eligibility for continued employment under H-1B status will depend on whether the beneficiary’s wage is sufficient for the work performed, as determined by the prevailing wage at the new location. A change of location to a new worksite within the same geographic area may not be affected by this decision, so long as notice is still provided at the new worksite.
The decision has taken effect as of April 9, 2015. When moving an H-1B worker to a worksite in a new geographic location, it is important to submit an amended petition and new LCA before the worker is moved. It is still unclear if this decision will be applied retroactively.
So, in summary, if an emplyer have an H-1b employee who is moving out of the immediate geographical area to a new location, this AAO decision REQUIRES that the employer file an AMENDED H-1b Petition BEFORE the employee is moved. If the employee moves within the same geographical area just filing a new LABOR CONDITION APPLICATION may be sufficient.
Resources:
http://aila.org/infonet/aao-matter-of-simeio-solutions-2015