Changes in Employment Location Require an H-1B Amendment

Changes in the location of an H-1B employee have been a subject of debate in the law and practice for many years, resulting in the need to file an H-1B amendment petition when a 'material change' occurs.

See prior guidance:

A USCIS unofficial guidance letter (letter from Efren Hernandez, Director Business and Trade Branch of USCIS to Lynn Shotwell, Am. Council on International Affairs, Inc., dated October 23, 2003) explained that if the only change was in the location of employment, then an amended H-1B petition was not required.

Yet USCIS has reportedly conducted site visits at the places of employment of H-1B beneficiaries, resulting in the revocation of H-1B approvals if they were not able to locate the employee at the new job location despite a valid LCA filed before the employee moved.

 

As a result, USCIS refused to issue any further clarifications or policy changes.

 

H-1B Amends are Required Under Prior AAO Decision:

In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the Administrative Appeals Office issued a decision to end the uncertainty surrounding the move of employees. USCIS will follow the decision in its H-1B adjudications and will use it when interviewing for visas.

As a result of the relocation to areas outside of the original LCA, the AAO revoked H-1B approval, finding the beneficiary's employment status had changed significantly, requiring an amended or new petition.

 

The AAO Holding:

Changes in location of a beneficiary's employment are material changes because they may affect their eligibility for H-1B status.There must be a new H*1B petition if the terms and conditions of employment are changed significantly.

The facts of the case:

After working in the U.S. for around two months, the beneficiary went for his visa stamping at a U.S. consulate abroad. He had to provide additional documentation regarding his work with the petitioner. Moreover, documentation of other worksite locations (end-client locations) where the beneficiary would be employed was provided by the petitioner. USCIS reviewed the case. USCIS revoked the approval of the H-1B petition after visiting the place of employment as stated on the petition because the beneficiary did not work at the location where the petition was approved. The petitioner replied that the beneficiary could work from the petitioner's home or from an additional office. The LCA covering the new sites was provided. In addition, USCIS noted that the beneficiary's places of employment had changed materially, requiring an amended H-1B petition corresponding to the new LCA that reflected these changes. An AAO official confirmed in an appeal that an employee must file an amended H-1B petition prior to moving to a new job location if there has been a change in employment necessitating a LCA.

H-1B Amendments are not necessary:

In addition, the AAO decision confirms that if a new site is added to the same LCA, then an H-1B amendment is not required.

The new work locations in the AAO decision were not covered by "non-worksite" locations, defined in 20 CFR 655.715, or short-term assignments and placements, set forth in 20 CFR 655.735.

 

If it is not necessary to file a new LCA:

Changing jobs within the same MSA or within commuting distance of the new work location

The LCA must be reviewed to determine whether it covers the new jobsite or whether a new LCA is required.

A new LCA is not required when an H-1B employee is transferred to a new worksite that was not contemplated when the LCA was filed, but which is within its "area of intended employment." 20 CFR 655.734(a)(2).

In the LCA, the "area of intended employment" is the area within commuting distance of the site. Commuting distance is not rigidly defined, and it depends entirely on the local circumstances. 655.715 of the CFR. The previous DOL policy stated that 50 miles was considered within normal commuting distance in California, but it may be greater or less in other areas.

Furthermore, if the new job location is within the same MSA (multi-state statistical area), it is not necessary to conduct a new LCA.

 

The H-1B employee must file an H-1B amendment petition if he or she moves to a new worksite within the same company but the LCA is not posted in advance of the move. 655.734(a)(2) of the INA.

 

A short-term assignment

The employer does not have to file another LCA to transfer an H-1B employee to a worksite not covered by the LCA.  655.735(a) of the 20 CFR. Compliance with all conditions must be met by the employer or else another LCA will be required. The conditions are:  20 CFR 655.735(b),(c).

 

Compliance with the existing LCA for all sites covered.

Placement at work sites where there is a strike or lockout is prohibited.

Each day the H-1B worker is outside the approved LCA area, the employer must pay:

If wages at the short-term worksite are higher than the prevailing wage,

The actual cost of lodging on workdays and non-workdays

Both workdays and nonworking days, the actual cost of travel, meals, and incidentals.

Any H-1B employee may not work more than 30 days in a year at any worksite or combination of work sites in the area.

During a one-year period the period can be extended beyond 30 workdays if the employer shows that the H-1B employee has:

1. Maintained a permanent office or workstation,

 

Over a one-year period, devotes a substantial amount of time to the permanent worksite

 

- Has a U.S. residence in the same area as the permanent worksite.

 

Once the workday limit has been reached, the employer must obtain a certified LCA or terminate the placement.

Employers must pay the required wages at both the short-term and existing sites whether using the short-term placement rules or filing a new LCA. A short-term rule, however, may impose an additional obligation of paying for lodging and travel. To avoid paying for lodging or travel expenses, the employer may prefer to file another LCA for the new workplace.

The employer will also have to file the H-1B amendment if the new LCA is submitted. To comply with the DOL and USCIS, employers need to evaluate the pros and cons of each option.

 

A "worksite" or an "employer" does not exist at the new location

A new Labor Condition Application or amended H-1B petition does not have to be filed if either (i) or (ii) of the following conditions apply:

(i) Employee development activities. The H-1B worker may temporarily move to another location if the employer requires development activities such as a management conference, a staff seminar, or a formal training course (other than training at the current work location). Those activities would not constitute a "place of employment" or "worksite," so the presence of an H-1B worker there-whether owned or controlled by the employer or by a third party-would not trigger those program requirements. If, however, the employer hires H-1B nonimmigrants to work continuously or regularly at such locations as instructors or resource or support staff, then the locations would qualify as "places of employment" or "worksites" for those employees and, thus, would be subject to the H-1B program requirements.

 

(ii) Job duties of a particular worker. H-1B nonimmigrants' job functions may require frequent relocations with little time spent at any one location due to their nature and duration. In the case of such workers, a location would not be considered a "place of employment" or a "worksite" if all three requirements are met -

 

(A) Because of the nature and duration of the H-1B worker's duties, he or she must spend a short period of time at the location. If so:

 

(1) The H-1B nonimmigrant's job must be peripatetic, meaning its duties (rather than the nature of the employer's business) require frequent travel (local or non-local) from one location to another; or

(2) The H-1B worker's job duties must require that he/she spend most work time at one location, but occasionally travel to other locations for short periods of time; and

(B) The H-1B worker's presence at the work sites to which he or she travels from the "home" location is on a casual, short-term basis, usually recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker or 10 consecutive workdays for any one visit by a worker who spends most of his or her work time at one location and travels to other locations occasionally); and

(C) The H-1B nonimmigrant is not acting as a "strikebreaker" (i.e., the nonimmigrant is not performing work in an occupation where workers are on strike).

 

 

H-1B Amendments when needed:

Changes in the place of employment that require the filing of corresponding LCAs (except in the circumstances described above) require H-1B amendments.

Moving outside the intended employment area. A new LCA and H-1B amendment petition are required if an H-1B employee moves to a new worksite outside of their original intended employment area. In this case, if the employee is moved to another MSA or if the new job location is not within the normal commuting distance from the old job, and if the short-term placement rules or worksite rules do not apply, it constitutes a material change in terms and conditions of employment requiring an amendment filing and further USCIS examination.

Employers should keep these tips in mind:

The new job location should be evaluated to determine whether it falls within the original LCA (see above the rules for short-term placements, non-worksite locations, and moves within the area of intended employment).

Specifically, if the change of employment place is in a geographical area that requires certification of an LCA, the AAO decision requires an H-1B amendment. A company's first step is therefore to determine whether a new LCA filing is necessary based on the above short-term placement rules, non-worksite locations, or moves within the same MSA or within the normal commuting distance.

Prepare the H-1B amendment prior to the employee's move:

According to the AAO decision, the filing of an amended H-1B is not mandatory prior to moving employees to a new office, but looking at H-1B regulations as a whole, you must notify USCIS if there is a change in employment terms and conditions. Employers should file the amendment before an employee moves. The employer should proceed with filing as soon as possible if the employee has already moved to the new location.

According to the AAO decision, an H-1B amendment can be merely filed or approved before the move. Further guidance from USCIS is certainly necessary. Employers, however, should at least file the H-1B amendment before relocating.