USCIS now requires amended H-1B petitions to be filed when moving workers
By Matthew Morse & Michelle Burns
Posted: 23rd September 2015 11:30
On 9 April 2015, the U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) issued a precedent decision that addressed whether a change in work location is a material change requiring the employer to file an amended H-1B petition. In Matter of Simeio Solutions, LLC, the AAO held that a change in a work location to a new geographical area requiring a new Labor Condition Application (LCA) is a material change in the terms and conditions of employment requiring the employer to file an amended petition. This writing will examine the decision, its impact on U.S. employers, and some limited exceptions to the rule embodied in this decision that may exist for some U.S. employers.
Matter of Simeio Solutions, LLC – a USCIS policy shift
In this case, an Information Technology (IT) company which employs approximately 40 workers in the U.S. filed an H-1B petition for a foreign national, which was approved by the USCIS. The initial work location was the employer’s headquarters. The foreign national worked at this work location for a two month period prior to leaving the U.S. and applying for the H-1B visa at the U.S. Embassy in New Delhi, India. When the foreign national applied for an H-1B visa at a U.S. consulate abroad, the consulate requested additional documentation of the foreign national’s assignment in the U.S. When this information was not provided, the U.S. Consulate refused to issue the visa and sent the H-1B petition back to the USCIS for revocation, on the basis that the terms and conditions of the original employment no longer exist. Subsequently, the USCIS conducted a site visit to the petitioner’s headquarters and when it could not locate the petitioner it issued a Notice of Intent to Revoke the H-1B petition. As part of its response to the Notice of Intent to Revoke that was issued by the USCIS, the employer provided a copy of a new LCA that it had obtained to place the foreign national at two new work locations that were not previously listed. The employer argued that it obtained a new certified LCA from the U.S. Department of Labor (DOL) prior to the H-1B worker beginning employment at the new work location, and based on a 2003 opinion letter issued by Efren Hernandez III, Director, Business Trade Branch, USCIS, an amended H-1B petition was not required. However, USCIS revoked the H-1B petition. Of particular interest, is footnote 7 of the AAO decision, which indicated the 2003 opinion letter issued by Efren Hernandez III, Director, Business and Trade Branch, USCIS, which many employers have relied upon in the past to avoid filing H-1B amended petitions when moving a worker to a new work location, has now been superseded by this new precedent AAO decision.
Indicators of USCIS leaning toward a policy shift prior to Matter of Simeio Solutions, LLC
In some ways, the decision issued by the AAO in Matter of Simeio Solutions, LLC is not terribly surprising. There has been a trend by the USCIS to compel employers to amend their H-1B petitions when moving H-1B beneficiaries to new work locations. For example, Donald Neufeld, Associate Director, Service Center Operations of the USCIS, issued a Memorandum entitled, “Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (2010 Neufeld Memo). The Neufeld Memo instructed USCIS adjudicators to examine closely the employer-employee relationship between the H-1B employer and the beneficiary, particularly, when the worker is being placed at a third party site. The memorandum further instructed USCIS adjudicators to focus on the H-1B employer’s right to control the work that is being performed by the H-1B worker. Establishing a valid employer-employee relationship is a required element in order to meet the definition of the term “United States employer” under USCIS’ regulations. As a result, it would stand to reason that if an H-1B employer is moving the H-1B worker to a new third party’s work location, the issue of whether a valid employer-employee relationship continues to exist between the H-1B employer and H-1B worker needs to be re-examined, and an amended H-1B petition should be filed with the USCIS.
In April 2011, the USCIS provided additional guidance during a meeting with the American Immigration Lawyers Association (AILA). In this meeting, representatives from the USCIS’ California Service Center (CSC) indicated that when there was a material change in the employment of an H-1B worker an amended petition was required. The representatives, however, did not provide an opinion as to whether a geographic move was a material change warranting an amended petition. The California Service Center representatives ended the discussion by advising practitioners to “err on the side of caution [and] file an amended petition in all cases where there is doubt as to whether an amended petition is required.”
In August 2011, the USCIS’ CSC provided further information on this issue during another meeting with AILA. During this meeting, stakeholders noted that USCIS was issuing notices intending to revoke approved H-1B petitions for workers who moved from the location of employment reflected in the H-1B petition to a new location, even though a new, valid LCA was obtained from the DOL, prior to the H-1B worker beginning work at that new location. The USCIS CSC responded by indicating USCIS was conducting a policy review of all H-1B guidance, including material change issues, and will issue new guidance. The USCIS CSC representative went further and stated, “Generally, it is the position of CSC Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”
Factors leading to the USCIS’ policy shift
In Matter of Simeio Solutions, LLC, the AAO noted that in order for the USCIS to adequately fulfill its duty to protect U.S. workers and ensure the proper wage is being paid, pursuant to Section 212(n)(1)(A)(i) of the Immigration and Nationality Act (INA), the USCIS needs accurate information as to where the H-1B worker is employed, and the duties to be performed. If an H-1B employer does not file an amended H-1B petition when an H-1B worker is moved to a new work location that requires a new LCA to be filed, the USCIS is unable to fulfil its duty under the law.
While this is the rationale provided in the decision, there are other factors the USCIS may have considered. For instance, the USCIS may have considered the negative impact that failing to file amended H-1B petitions has on its Administrative Site Visit and Verification Program. If an H-1B employer only amends the LCA, the USCIS is not placed on notice as to the new work location where the H-1B worker is working. As a result, investigators conducting H-1B work site visits would have shown up at the work location listed on the H-1B petition, and not the new work location listed on the new LCA. USCIS may have considered the amount of time and money lost by sending investigators to conduct site visits at locations where H-1B workers are no longer working.
Another factor the USCIS may have considered was a need to make sure the employer-employee relationship between the H-1B employer and the H-1B worker continues to exist, each time an H-1B employer is placing the H-1B worker at a new work location. IT companies are some of the largest filers of H-1B petitions, and many IT companies place H-1B workers at third party locations in order to work on the computer systems of their customers. Analysing the employer-employee relationship, and whether the H-1B employer has the right to control the work being performed by the H-1B worker placed at that third party location would confirm the definition of the term “United States employer” has been met under the regulations, ensuring the integrity of the H-1B program.
Another factor motivating the policy shift may be revenue. The USCIS relies on filing fees collected to fund its operations. Requiring U.S. employers to amend their H-1B petitions each time an H-1B worker is moved to a new work location, requiring a new LCA to be filed, generates more review for the USCIS.
Some possible exceptions to Matter of Simeio Solutions, LLC
Based on the decision in Matter of Simeio Solutions, LLC, an H-1B employer is required to file an amended H-1B petition when the work location changes to a new geographic area, which requires a new LCA to be certified by the DOL. However, there may be several exceptions to this rule.
First, the AAO’s decision in Matter of Simeio Solutions, LLC is silent as to whether a change of work location within the same “area of intended employment” as the work location listed on the original LCA requires an amended H-1B petition to be filed. The AAO noted that a change in work location within the same Metropolitan Statistical Area (MSA) is not considered to be a material change. Chapter 20, Section 655.715 of the Code of Federal Regulations (CFR) defines the “area of intended employment” as an area within a Metropolitan Statistical Area (MSA). However, this regulation also defines the “area of intended employment” as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.” The definition further notes that there is no “rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles).” As a result, there may be locations that are outside of the MSA, but that might fall within the “area of intended employment,” based on the particular facts or circumstances. Therefore, an argument may be made that, in those cases in which the new work location is within the “normal commuting distance” of the work location listed on the initial LCA, an amended H-1B petition is not required.
Second, Chapter 20, Section 655.735 of the Code of Federal Regulations (CFR) states H-1B workers may be placed at worksites not listed on an LCA on a short-term basis, if certain conditions are met. Under this regulation, an H-1B employer may assign an H-1B worker at any worksite not listed on the LCA, as long as the total number of workdays at the other worksite, or a combination of worksites, in a one year period (i.e., 1 January through 31 December), does not exceed 30 days. (Note: “Workday” is defined as any day that an H-1B worker performs any work at any worksite within the area of short-term placement, whether the H-1B employer owns or controls the worksites, or not.) If the H-1B employer elects to assign the H-1B worker to a worksite not listed on the LCA for a period not to exceed 30 days, the H-1B employer must do the following:
- Continue to pay the H-1B worker the wage rate listed on the LCA;
- Pay the worker the cost of lodging for both workdays and non-workdays;
- Pay the worker the actual cost of travel, meals, and incidental expenses for both workdays and non-workdays;
- Make sure there is no strike, lockout, labour dispute, etc. in the same occupation as the H-1B worker’s occupation at the worksite the worker will be placed;
- Comply with all LCA requirements (i.e., Notice posting requirement, confirmed no strike or lockout at location listed on LCA, Confirmed employment of H-1B worker will not adversely affect working conditions of others at work location on LCA, etc.) to date.
- The H-1B worker maintains an office, or work station, and maintains a dedicated telephone line(s) at the permanent work location listed on the LCA;
- The H-1B worker spends a substantial amount of time at the permanent worksite in a one-year period; and
- The H-1B worker’s residence is located near the permanent worksite listed on the LCA, and not in the area of the short-term worksite (Note: Evidence that would establish a residence near the permanent worksite would be lease agreement, bank account statement, driver’s license, etc.)
- The H-1B employer has a certified LCA for the occupation at that work location.
- The H-1B worker has just entered the United States to begin his or her H-1B employment. (Note: The regulation indicates the initial assignment given to the H-1B worker who has just entered the United States, must be the work location specified on the LCA.)
- H-1B employer must not continuously rotate H-1B nonimmigrants on short-term assignments in a manner that would defeat the short term placement option, which is to provide the H-1B employer with some flexibility to afford enough time to obtain a new LCA for the worksite the H-1B worker will be employed.
Once the 30 or 60 workday limit has been reached, the H-1B employer is required to file an LCA for that work location. If an H-1B worker exceeds the workday limit within the one-year period, then the H-1B employer has violated the LCA, and may not place H-1B workers in that occupation on a short-term basis at that work location in the future.
Third, the AAO’s decision in Matter of Simeio Solutions, LLC appears to indicate that if the original LCA continues to remain valid, but the H-1B employer needs to file a new LCA to add an additional work location for the H-1B worker, an amended H-1B petition may not be required. However, it is not completely clear from the AAO’s decision as to whether this would not be a material change in all cases. It would depend on the facts and circumstances of the case. In these situations, H-1B employers may wish to follow the April 2011 guidance provided by USCIS at its meeting with AILA, described above, and err on the side of caution, and file an amended H-1B petition.
The decision in Matter of Simeio Solutions, LLC is clear – an amended H-1B petition is required to be filed with the USCIS when an H-1B worker changes work locations, requiring a new certified LCA from the DOL. While there may be some exceptions to this rule, these limited exceptions may not likely apply in many cases. In addition, without additional guidance from USCIS, it is not completely clear whether some of the exceptions outlined above would apply under certain facts or circumstances. H-1B employers would be advised to err on the side of caution and file amended H-1B petitions in order to avoid creating a maintenance of status problem for their H-1B workers. In addition, H-1B employers will need to budget for the additional filing fee of $325.00 to file an amended H-1B petition, as well as budget for any attorney’s fee to process the amended H-1B petition.
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Mr. Rami Fakhoury is passionate about immigration law. He is the founder and Managing Attorney of Fakhoury Law Group, PC (FLG), a Martindale Hubbell AV-rated business immigration firm. Mr. Fakhoury was a pioneer in establishing an office in Mumbai to better service FLG’s Indian IT and Engineering clients. His knowledge of immigration and foresight into immigration trends and policy have earned him widespread recognition. He is currently helping the State of Michigan develop immigration-friendly reform policies to attract business and professionals to Michigan. In 2009, Mr. Fakhoury became an Equity Partner of the Alliance of Business Immigration Lawyers (ABIL), the largest and most prestigious global immigration consortium.
Mr. Fakhoury was selected as Immigration Attorney of the Year (2011) by Detroit Lawyer Monthly, and is designated Top Lawyer in DBusiness and Hour magazines. He has also been listed in the International Who’s Who of Corporate Immigration Lawyers for two consecutive years.
Matthew Morse has been an immigration attorney for twelve years, focusing on employment-based and family-based immigration law issues. He has extensive experience with H, L, TN, O, K, B visas, as well as with Labor Certifications, Visa Processing, Adjustment of Status, and healthcare worker immigration issues. Mr. Morse also has profound proficiency with Extraordinary Ability Alien cases, National Interest Waiver physician petitions, Outstanding Professor/Researcher petitions, Advance Degreed Professionals cases, Multinational Managers and Executives cases, and Naturalization law issues.
Matthew can be contacted on (248) 643-4900 or by email at firstname.lastname@example.org