The Perils of Job Site Changes for H-1B workers


On April 9, 2015, the Administrative Appeals Office (“AAO”), an appeals unit of USCIS, issued a decision regarding job site changes of H-1B workers.

The case (Matter of Simeio Solutions LLC, 26 I&N Dec. 542) upheld the revocation of an H-1B worker whose place of employment changed after petition approval. The employee’s initial worksite was in Long Beach, California. Subsequently, the employee began providing services to clients at various sites that were not identified in the application. USCIS auditors conducted a site visit,[1] whereupon they discovered that the employer had vacated the Long Beach facility, relocating to a Los Angeles office.

USCIS issued a Notice of Intent to Revoke (NOIR) the petition. In response, the employer filed a new Labor Condition Application (LCA)[2] that listed two new worksites - in Camarillo, California and Hoboken, New Jersey –neither of which was within the Metropolitan Statistical Area (“MSA”) governing the initial LCA. The required wages for both new worksites were approximately $9,000 yearly greater than the original worksite.

The AAO determined that the new worksites constituted a material change that had triggered the need for the filing of an amended H-1B petition. Since an amended petition was not filed before the change occurred, USCIS correctly revoked the original H-1B petition. The change was material because it impacted the requirement to pay the prevailing wage for the position and the need to post the position at the worksites.

How does this decision affect H-1B workers whose job sites change after petition approval?

Matter of Simeio Solutions LLC was certified for review by the Director of the California Service Center (CSC). Thus, the CSC sought guidance from the AAO on this very important decision. Clearly, USCIS will apply the holding of this decision.

Before transferring an H-1B worker to a different worksite, an employer should consider whether the new worksite will be located in a different MSA and evaluate the required wage for the position at the new worksite.

If the facts align with those of Matter of Simeio Solutions LLC, the relocation may be considered a “material change,” which requires the filing of a new or amended H-1B petition before the employee starts working at the new location. The AAO did not render an opinion regarding the materiality of a job site change within the same MSA. Given this lack of agency guidance, if relocation occurs within an MSA, the employer should -- at a minimum – obtain a new LCA, and a job site posting at the new job site should occur.

[1] USCIS may direct any necessary investigation to verify the evidence submitted in a request for an immigration benefit. Such investigation includes unannounced physical site inspections of places of employment.

[2] An LCA (Form ETA 9035/9035E) is filed with the Employment and Training Administration (ETA), a division of the Department of Labor. An LCA must be approved before the employer files an H-1B petition. The LCA contains information about the position (e.g. occupational title, wage to be paid, location) and several employer attestations, including that the employment of the H-1B worker will not adversely affect the working conditions of similarly-employed U.S. workers; the employer will pay the H-1B worker the required (higher of the actual or prevailing) wage; there is no strike, lockout or work stoppage at the place of employment; and the employer has provided notice of filing to the bargaining representative (if there is a union) or workers in the prospective employee’s occupational classification at the worksite.

Reprinted with permission.

About The Author

Jennifer Lin is an associate attorney at Stone, Grzegorek & Gonzalez LLP, a boutique full-service immigration law firm, in Los Angeles. She counsels clients in obtaining permanent resident status, and has experience working on nonimmigrant petitions. She earned her Bachelor of Arts degree in Comparative Literature and Spanish from Bryn Mawr College, and her Juris Doctor from UCLA School of Law.

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