AAO Guidance Clarifies That Worker Mobility May Come at a Cost
June 01, 2015
In a move likely to elicit equal parts appreciation and exasperation among the employer community, U.S. Citizenship and Immigration Services (USCIS) issued guidance on the need to file an amended H-1B petition when there is a change in worksite locations. The guidance, which was issued on May 21, 2015, came six weeks after the USCIS Administrative Appeals Office’s (AAO) precedent decision in Matter of Simeio Solutions, LLC. Given the trend in our economy toward an increasingly mobile workforce and growing reliance on the use of third-party consultants, especially in some sectors, the AAO guidance will leave many employers facing the prospect of additional expense and time to stay in compliance with USCIS policy and regulation.
What Triggers the Need to File an Amended H-1B Petition?
According to the new guidance, employers must file an amended petition if their H-1B employee “changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) . . . covered by the existing approved H-1B petition.” It is important to note that not all changes in location will trigger the need for an amended H-1B petition. Instead, the change in worksite location must be to a new site outside of the original MSA. Per the AAO, such a move to a worksite outside the MSA would constitute a “material change” in the terms and conditions of employment. Accordingly a new H-1B petition with accompanying certified Labor Condition Application (LCA) and fee must be filed to notify USCIS of the change.
Whenever such a “material change” occurs, petitioners are required to certify a new LCA with the U.S. Department of Labor (DOL). An approved LCA is required as part of the H-1B application to help protect the interests of U.S. workers. One of the conditions stipulated in the LCA is that the H-1B worker must be paid a wage that is at least as high as the prevailing wage or the actual wage (whichever is higher) for other workers in a similar position in the same area. Logically, the wage threshold that employers must meet to satisfy this part of the LCA will vary based on where the job is located—markets that generally pay higher wages will result in a higher prevailing wage and vice versa. Thus, when you move to a new location that might have a different prevailing wage or actual wage, the employer must certify a new LCA to ensure the H-1B employee’s wage will still be sufficiently high to protect the interests of other workers. The new LCA, in turn, then triggers the need to file an amended H-1B petition.
In Matter of Simeio Solutions, LLC, the petitioner attested in its original H-1B petition as well as the LCA that the H-1B employee would be working on an in-house project at the petitioner’s facility in Long Beach, California. However, upon conducting a subsequent site visit, USCIS officers discovered that the petitioner had left the Long Beach office after just two months. The petitioner then attempted to file a new LCA listing two new worksites in Camarillo, California and Hoboken, New Jersey. However, since neither of the two new worksites was located in the same MSA as the one listed on the original petition, USCIS interpreted this as a material change that required the filing of a new H-1B petition. Because the petitioner had failed to file an amended petition along with its new LCA, USCIS revoked the H-1B visa.
So What Changed?
For more than a decade many employers, relying upon advice provided in a 2003 letter issued by then-Director of USCIS Business and Trade Branch Efren Hernandez believed that, as long as an LCA was certified and all of its obligations met prior to an employee starting work at a new location, no material change would be deemed to exist and, thus, no amended H-1B petition would be required. As a result, prior to the recent AAO ruling and the new guidance from USCIS, a significant number of employers would simply file an amended LCA and provide an internal posting at the new worksite. This was a cost-effective procedure as the LCA does not require a filing fee and is usually adjudicated within seven days. Under the new guidance, this will no longer be sufficient. With only certain exceptions, employers must now incur the additional cost and time required to file an amended H-1B petition (Form I-129) with USCIS and have it adjudicated.
Not All Worksite Changes Require an Amended H-1B Petition
The new USCIS guidance also clarifies a number of exceptions to its general rule.
- If an H-1B employee moves to a new worksite that is still within the same MSA, no new LCA is required and, therefore, there is no need to file an amended H-1B petition. Even in this circumstance, however, employers must still post the original LCA at the new worksite to stay in compliance with USCIS regulations. So, if a company is moving its offices to a new space down the street, or if an H-1B employee will be moved to a team working out of a midtown office location rather than, for example, a downtown headquarters location, or if an H-1B employee is being assigned to a new client site within the same town, then all the employer must do is post the original LCA at the new location.
- If an H-1B employee has a short-term placement at a new location, then there is no need to file an amended H-1B petition. In order for this exception to apply, the placement must be for no more than 30 workdays in a 1-year period at any particular worksite or combination of worksites within the same area. A short-term placement can extend up to 60 days, but only if the employer can show that the H-1B employee is still based at the location listed in the original LCA. Details that could help to substantiate that claim would include proof that the H-1B employee has a dedicated office and phone at the original location and spends considerable time there, or that the H-1B employee’s residence is located near the location listed in the original LCA rather than near the location of the short-term placement.
- If an H-1B employee spends time at a non-worksite location, there is no need to file an amended H-1B petition. Travel for conferences, seminars, or training are prime examples of permissible non-worksite locations. Some technical support positions, such as a software or computer engineer, where an H-1B employee has a primary job at one location, but may be required to travel occasionally to other locations due to the nature of the work, may also qualify for this exception.
Grace Period for H-1B Workers Who Already Changed Worksites
Employers with H-1B workers who changed their worksite to a new location outside the MSA in the originally approved H-1B petition at any point prior to the new guidance in the wake of the AAO’s Simeio Solutions decision have until August 19, 2015 (i.e., 90 days from the issuance of the new guidance) to file an amended petition. After that date, employers that have not filed an amended petition will be out of compliance with USCIS regulations.
Unfortunately, despite the grace period, the requirement to file an amended petition for all H-1B employees who have changed worksites (other than those who fit under one of the above mentioned exceptions) could impose substantial new costs and administrative burdens on employers. One silver lining is that H-1B employees may begin working at their new location as soon as the employer has filed an amended petition. This means that employers do not need to suffer further work delays while awaiting a final decision on the amended petition.
Lowell Sachs is a Practice Support Manager and is based in the Raleigh office of Ogletree Deakins.
Miguel A. Manna is an associate in the Raleigh office of Ogletree Deakins.