JD Supra: "Changed locations require New H-1B Petition, Not Just LCA"

by Joseph McKeown

After a decision earlier this month by the US Attorney General to designate as "precedent" a decision by US Citizenship and Immigration Services' (USCIS) Administrative Appeals Office (AAO), employers must now file amended H-1B petitions if the employee moves work locations outside the geographic area specified on the original certified labor condition application (LCA) because the filing of a new LCA is a material change. The LCA is designed to protect American workers by verifying to the Department of Labor (DOL) that the employer is paying the H-1B employee at the industry wage level for the geographic location of employment thereby eliminating economic advantages to hiring foreign workers. Previous to this decision, most practitioners simply filed a new LCA and updated the company’s public access file when the employee changed geographic locations but did not file an amended H-1B petition. Although disputed, this practice at one time was confirmed in a letter by stakeholder Efren Hernandez who was then Director of the USCIS Business and Trade Branch. A new H-1B was typically filed only when there was a “material change” in the beneficiary’s employment but there was no consensus as to what exactly constituted a “material change.”

Designating AAO decisions as precedent is a "quicker way of settling an interpretational issue than issuing a regulation" and this decision will immediately change how petitioners file certain H-1B cases and, of course, how USCIS adjudicates them. 

Because by statute the Attorney General (AG) is the ultimate arbiter within the Executive Branch about the meaning of immigration laws, the AG's designation as precedent makes the decision binding on all immigration officers in the Department of Homeland Security as well as all Immigration Judges in the Department of Justice. An agency decision designated as precedent also tends to receive the highest level of deference from federal courts, the same as in a regulation following notice and comment rulemaking.

This AAO decision (Matter of Simeio Solutions, LLC) concerned the revocation of an H-1B petition for an foreign national IT worker, whose case also highlights some of the potential H-1B "abuses" that USCIS has been trying to remedy. In this instance, the petitioner filed an H-1B petition listing a sole work location in Long Beach, California. After the petition was approved, when the beneficiary attempted to obtain a visa stamp at the US Embassy in New Delhi, India, the consular officer conducting the visa interview raised concerns about the approval of the H-1B petition, requested additional documentation, and referred the case back to USCIS. In addition, USCIS also conducted a site visit to the work location and found that the petitioner had vacated the site and was using an employee's home as the company address. After USCIS issued a notice of intent to revoke the approval of the petition, the petitioner submitted a new LCA listing two new work location addresses: one in Camarillo, California, and one in Hoboken, New Jersey. USCIS concluded that these work location changes "constituted a material change to the terms and conditions of employment as specified in the original petition" since the prevailing wage of these locations was different than what was previously listed on the original LCA and USCIS required that the petitioner “file an amended Form I-129 corresponding to a new LCA that reflects these changes." Since the petitioner had not filed the required amended H-1B, USCIS revoked the original petition approval, which is never something attorneys want to tell their clients.

The decision, in short, clarifies that a change of work location outside the geographic area is a "material change" to the H-1B petition since such a change affects eligibility for H-1B status (as the LCA specifically attests that employees are compensated at the prevailing wage for a certain geographic location), and thus an amended H-1B petition must be filed. The decision concludes: "Full compliance with the LCA and H−1B petition process, including adhering to the proper sequence of submissions to DOL and USCIS, is critical to the United States worker protection scheme...and necessary for H−1B visa petition approval."