AAO Requires Amended H-1B Petition for Change in Work Location When New LCA Necessary

On April 9, 2015, the Administrative Appeals Office (AAO), which is responsible for the review of certain decisions rendered by U.S. Citizenship and Immigration Services (USCIS), issued a published decision in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), holding that:

  1. A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application (“LCA) to be certified with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of the immigration regulations.
  2. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

In Matter of Simeio Solutions, LLC, the petitioner had obtained an H-1B approval of a petition, in which it identified an address in Long Beach, California (Los Angeles-Long Beach-Santa Ana, CA Metropolitan Statistical Area) as the beneficiary’s place of employment. The petitioner stated that the beneficiary would provide services for a specific client and emphasized that “[the beneficiary] is and will continue to work from [the petitioner’s] Long Beach office.” The petitioner did not request other worksites and did not submit an itinerary.

After working for the petitioner in H-1B status for approximately  two months, the beneficiary departed from the United States and applied for an H-1B visa at the United States Embassy. The Embassy returned the petition to USCIS for review, stating that during the course of the visa interview process, the beneficiary and the petitioner presented information that was not available to USCIS at the time the petition was approved. USCIS officers then conducted a site visit at the petitioner’s Long Beach facility, the place of employment specified in the H-1B petition and supporting documents. The USCIS site visit resulted in a report stating, in part, that the officers were unable to locate the petitioner’s office at the address identified in the petition and LCA. USCIS issued a notice of intent to revoke the approval of the petition (NOIR).

In response to the NOIR, the petitioner confirmed that the beneficiary was no longer working on the project or at the location specified in the original petition.  The petitioner stated that the beneficiary’s services had been used for “various end users” and that he had worked either out of the petitioner’s Long Beach office or from his home office.  With its response, the petitioner submitted a new LCA that provided two new worksites – in Camarillo, California (Oxnard-Thousand Oaks-Ventura Metropolitan Statistical Area) and Hoboken, New Jersey (New York-Newark-Jersey City, NY-NJ-PA Metropolitan Statistical Area) – as the beneficiary’s places of employment.  Both worksites are located in metropolitan statistical areas different from the worksite listed on the original petition.

One of the requirements for H-1B petitions is to first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL).  In this document, the employer attests to standards to which it will adhere for purposes of the H-1B employment. The LCA currently requires petitioners to describe the number of workers sought, the pertinent visa classification for such workers, their job title and occupational classification, the prevailing wage, the actual rate of pay and the place(s) of employment.

In the event of a material change to the terms and conditions of employment specified in the original petition, the petitioner must file an amended or new petition with USCIS with a corresponding LCA. In Matter of Simeio Solutions, LLC, the AAO found that a change in the place of employment of a beneficiary to a geographical area requiring that a corresponding LCA be certified with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of amendments. The AAO reasoned that this interpretation of the regulations clarifies, but does not depart from, the agency’s past policy pronouncements that the mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition, provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.

Whether a job location change requires an amended petition has been a controversial issue for a long time and USCIS has become much more strict on this issue in recent years. The decision in Matter of Simeio Solutions, LLC emphasizes the importance of working with experienced immigration counsel when evaluating whether an amended petition is required when an H-1B employee’s work location will change or in situations involving a new end client.

UPDATE: On July 21, 2015, USCIS issued final guidance in the form of a Policy Memorandum. In the Policy Memorandum, USCIS extends the grace period provided to employers to comply with Simeio. Read more here.

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