- May 18th, 2015
Significant Development for Employers of H-1B Workers – Change of Worksite Triggers Need for New LCA and Amended Petition
In a recent precedent decision, Matter of Simeio Solutions, LLC, the U.S. Citizenship and Immigration Service’s Administrative Appeals Office has taken the position that a change in the place of employment of an H-1B foreign national to an area not covered by the original Labor Condition Application supporting the current H-1B petition is a “material change” in the beneficiary’s employment. Therefore, not only is a new LCA required, but also an amended H-1B petition is required.
This decision is not without controversy. Not only can the filing of amended H-1B petitions be expensive, considering the legal fees, government filing fees, and manpower time the employer must spend. But there is always the risk of an amended petition being denied – they are freshly reviewed by a different USCIS adjudicating officer. The biggest impact is likely to be seen in the staffing and consulting industries, particularly in Information Technology, Accounting, and Management Consulting fields where frequent changes in job sites is very common.
Prior to this decision, employers were able to rely on informal guidance in the form of a letter from a former USCIS official, Efren Hernandez, which indicated that an amended petition was not required when an H-1B worker was placed at a new worksite, as long as a new LCA was obtained prior to the move. However, the AAO in Simeio specifically states that the Hernandez letter has been superseded by their decision.
There has yet to be any guidance from the immigration service as to how the Simeio decision will be implemented. And there are some key questions to be addressed, mainly concerning timing. For example, in a footnote within the Simeio decision, it is suggested that the new LCA, along with the amended H-1B, must be submitted before the foreign national employee can begin working in the new location. However, this goes against the U.S. Department of Labor’s short-term placement exception where the H-1B worker is permitted to be at the new location for up to 30 days, and in some circumstances for up to 60 days, before a new LCA must be filed.
Nevertheless, the AAO decision is expected to have an immediate impact on employers as they face inevitably tough business and strategic decisions when key employees need to be moved to new worksites. For now, such a move will most likely trigger the need for the filing of a new LCA and amended H-1B petition at least 30-60 days from the time of the move.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.