On April 9, 2015, the Administrative Appeals Office (AAO) of
the U.S. Citizenship and Immigration Services (USCIS) issued a binding,
precedential ruling that all U.S. employers must file an amended petition with
the agency whenever an H-1B employee moves to a worksite location which was not
specified on the underlying Labor Condition Application (LCA) attached to the
original petition filing.
The AAO decision formally supports USCIS and DOL regulations
and affirms a trend in policy which has been gaining momentum over the past
several years. In 2003, an official at USCIS headquarters wrote a nonbinding
letter in which he opined that an amended petition might not be required when
an H-1B employee moves to a new worksite, provided that a new LCA was approved
by the DOL and posted at the new worksite before the H-1B employee arrived
there. Since that time, the USCIS has often allowed employers to follow this
strategy when H-1B employees moved, without ever officially endorsing it.
However, the legal authority for that strategy has always been suspect. More recently,
the USCIS’ anti-fraud unit “site visits” have resulted in several instances of
H-1B petitions being revoked, including the petition which is the subject of
this AAO ruling. We have repeatedly warned employers that a failure to file an
amended H-1B petition with the USCIS in these situations could be considered a
violation of long-standing, formal USCIS and DOL regulations.
This decision by the AAO is effective immediately and could
have a profound impact on employers in the information technology consulting
and contract staffing industries, as well as other employers who are not able
to anticipate all potential H-1B employee worksites at the time of their
original petition filing. There are certain, limited exceptions to the amended
petition requirement, including scenarios where the employee only moves a very
short geographical distance, such that the existing LCA still covers the new
worksite. However, the AAO was also careful to note that even nearby worksite
changes could trigger a need for an amended petition, if the move includes
other changes in employment. A common example of this could be a move to a new
third-party, client/customer worksite, which would normally require the company
to submit evidence to the USCIS to confirm its employer-employee relationship
with the H-1B worker and its ongoing, exclusive control of his or her
employment.
DW Immigration will be monitoring this development closely for
our clients, and we will notify you of any significant updates, including if
this policy is extended to other temporary work visa classifications, such as
the L-1A or L-1B categories. In the meantime, it is now clear that amended
petitions must be filed whenever an H-1B worker is moved to a location which
triggers a requirement for a new LCA. As always, if you have any questions or
concerns about this new ruling, please feel free to reach out to any of our
Immigration Attorneys for advice, at any time.