A Change in H-1B Work Location Requires an Amended Petition, USCIS Appeals Tribunal Rules

 

USCIS today announced a significant change in policy affecting organizations whose H-1B employees change worksite locations. In a decision with precedential effect, USCIS’s Administrative Appeals Office (AAO) has ruled that employers must file an amended petition with the agency when an H-1B employee moves to a new worksite that was not specified in the initial petition and an accompanying labor condition application (LCA) certified by the Department of Labor. The new policy takes effect immediately. 

 

The AAO decision overturns longstanding past USCIS guidance. For years, the agency took the position that an amended petition was not required if an LCA for a new worksite location had been certified by the Department of Labor in advance of an H-1B employee's move. In recent years, USCIS Service Centers began to take more restrictive positions on H-1B location changes, especially in the context of site visits by the agency’s Fraud Detection and National Security unit, but did not officially alter its policy until today. 

 

 

The decision has a profound impact on H-1B employers in the consulting field and other industries requiring client site placements and other work location changes. H-1B employers will be obligated to file an amended petition in all location changes that require a new LCA – that is, unless the new location was specified in the initial H-1B petition and accompanying LCAs or, in certain circumstances, if it is within the geographic area of an LCA included with the initial H-1B petition. And though the AAO decision focuses only on worksite moves for H-1B employees, it could have an impact on USCIS policy with respect to location changes for employees in the L-1 and other nonimmigrant classifications. 

 

Fragomen is closely analyzing today’s decision and will issue further guidance on its effect on employers. Please contact your designated Fragomen professionals if your organization has specific questions about the impact of the decision on its immigration program.