Analysis: USCIS issues binding guidance on location changes, H-1B amended petitions

15 Apr 15

UNITED STATES

On April 9, U.S. Citizenship and Immigration Services issued a binding, precedent decision that requires an employer to file an amended petition with USCIS whenever an H-1B worker moves to a worksite that was not covered by a Labor Condition Application (LCA) submitted with the initial petition. The decision imposes a significant operational and financial burden on companies that move H-1B workers between worksites.

Is an employer required to file an amended H-1B petition if there is a change in the place of employment?

In Matter of Simeio Solutions, the Administrative Appeals Office (AAO) issued a binding, precedent decision holding that a change in the place of employment of a beneficiary to a geographical area that requires the filing of a new LCA constitutes a material change in employment and requires the filing of an amended petition. 26 I&N Dec. 542 (AAO 2015).

The precedent decision explicitly supersedes earlier agency guidance, including the “Efren Hernandez” letter that indicated that an amended petition was not required if a new LCA was obtained prior to placing an H-1B worker at a new worksite. See Letter from Efren Hernandez III, Dir., Bus. and Trade Branch, USCIS, to Lynn Shotwell, Am. Council on Int’l Pers., Inc. (Oct. 23, 2003).

As discussed in greater detail below, there are circumstances when an employer may place an H-1B worker at a different worksite without the need to secure a new LCA. In those situations, the AAO precedent decision does not require an employer to file an amended H-1B petition unless there is a material change unrelated to the geographic change.

Is the precedent decision binding on all agencies and H-1B petitions?

Yes. Because the AAO decision was designated a precedent decision and published by the Justice Department, it is legally binding on Department of Homeland Security components responsible for enforcing immigration laws in all proceedings involving the same issue or issues. This means the policy will be applied by all USCIS service centers and it is expected that the policy will be followed by consular officers overseas.

When does the new policy go into effect?

The new policy is effective immediately.

Does the policy apply to changes in work location that occurred prior to the AAO decision?

The government has not stated whether an employer is required to file an amended petition if the change in worksite occurred prior to April 9, the date the precedent decision was published. A conservative approach would be to file an amended petition on behalf of any H-1B worker who is located at a worksite that was not covered by an LCA submitted with the initial petition.

Can an employee begin working at the new location before the amended petition is approved?

The AAO precedent decision does not address this question, though it is significant that the decision only references the need to file an amended or new petition and does not explicitly require the approval of the amended petition before the H-1B worker can begin working at the new worksite.

What are the consequences if the company does not follow the new policy?

USCIS regulations provide that “a nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes failure to maintain status.” 8 CFR § 214.1(e). The government may argue that an employee who works after the date of the decision at a location not covered by a new or amended petition violates his or her H-1B status. This would render the H-1B worker subject to removal (deportation) and, upon a formal determination by USCIS that the employee is out of status, would start the unlawful-presence clock that could trigger the 3- or 10-year inadmissibility bar.

USCIS regulations further provide that “[a]n extension of stay may not be approved for an applicant who failed to maintain the previously accorded status” and the employee could face difficulty obtaining a new H-1B visa at an overseas consulate. See 8 CFR 214.1(c)(4). It is also expected that USCIS will seek to revoke an H-1B petition if a Fraud Detection and National Security Directorate (FDNS) site visit reveals that the H-1B employee is working at a location not covered by an amended or new H-1B petition.

It is not yet known whether the Labor Department, like USCIS, will take the position that a company is failing to comply with its LCA obligations if it fails to submit an LCA to USCIS through an amended or new petition. If the Labor Department adopts the same interpretation, a company could face severe civil penalties, up to and including debarment from the immigration program, if it fails to comply with the new AAO precedent decision.

How can an employer minimize the impact of the AAO precedent decision?

The AAO decision will force companies to evaluate whether and when a new LCA is required, as that is the triggering event for filing an amended petition. In particular, companies will want to consider the following questions:

  • Is the new worksite a “place of employment” or does the activity fit within one of the exceptions for development activity, peripatetic employees, or occasional travel?
  • Is the new place of employment within the same “area of employment” (e.g. metropolitan statistical area or commuting distance) such that a new LCA is not required?
  • Does the work qualify as short-term placement so that a new LCA is not required?

Companies should work with their BAL professionals to evaluate options and risks for roving employees.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.