A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, April 18, 2015

Change in Work Location is Material Change Requiring new LCA and H-1B Petition

A change in the geographic work location is a material change in the terms and conditions of H-1B employment, for which the employer must file an amended or new H-1B petition with the corresponding Labor Condition Application (LCA), according to a recent decision of USCIS's Administrative Appeals Office.  Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

Many modern jobs, especially those in IT consulting, require employees to travel or relocate to various work locations or client sites.  For H-1B employees, frequent travel and relocation can cause complications in their immigration status.  An H-1B petition is only approved for specific employment location(s), based on the information contained in the LCA.  

In order to protect the working conditions of U.S. workers and to ensure that foreign workers get paid the market wages, an H-1B employer is required to first submit a LCA with the Department of Labor to certify the working conditions and salary of the employee.  Section 212(n)(1) of the Immigration and Nationality Act (INA).  

The regulation further requires that the petitioner file an amended or new H-1B petition whenever there are "any material changes in the terms and conditions of employment or training or the foreign employee's eligibility."  A new LCA must also accompany the new or amended H-1B petition.  8 CFR Sec. 214.2(h)(2)(i)(E).  

There are some exceptions to these rules. For example, the job nature of some workers (e.g., sales professionals) require them to travel frequently, but they don't spend more than five days in one place,  For these peripatetic workers, the different work locations are not considered new work-sites or places of employment.  As such no new H-1B petitions or LCAs are required.  

However, some employers choose not to file new H-1B petitions even though their employees have been assigned to new job-sites or client locations. Cost-saving is a common reason for non-compliance. Some employers actually try to avoid another round of adjudication out of fear that the new petition may not be approved.   However, under Simeio Solutions LLC, it is no longer prudent for employers to put off filing amended H-1B petitions whenever there are changes in work locations. Noncompliance or delayed filings will result in revocation as well as other legal consequences such as a finding of willful violation by the Department of Labor. 

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