Fragomen on Immigration: AAO Decision Makes Relocation of H-1B Employees More Difficult

In a decision with precedential effect, USCIS’s Administrative Appeals Office (AAO) has ruled that employers must file an amended petition with USCIS whenever an H-1B employee moves to a new worksite that was not specified in the initial petition and accompanying labor condition application (LCA) certified by the Department of Labor. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). This will make it significantly more difficult for employers to move H 1B employees from one location to another. More to the point, it will serve to further hinder the innovative business model which has made the consulting, information technology and healthcare industries the most productive drivers of the U.S. economy.

The AAO’s decision requires employers to file an amended H-1B petition whenever a new LCA is required in support of a specific H-1B worker’s employment, on the theory that a change in the H-1B worker’s place of employment to a geographical area not covered in the original LCA is a material change in the terms and conditions of employment. Accordingly, an amended petition, with a new underlying LCA, must be filed whenever an employee moves to a new location not covered by the LCA currently in effect. This decision explicitly supersedes informal agency guidance upon which employers have long relied, i.e., a 2003 letter from Efren Hernandez, III, Dir., Bus. and Trade Branch, USCIS, to Lynn Shotwell, Executive Director of the former American Council on International Personnel (now the Council for Global Immigration). This letter advised that it was not necessary to file an amended H-1B petition when an H-1B employee transfers to a new location not included on the original Form I 129, so long as an LCA for the new worksite location had been certified by the Department of Labor prior to the employee’s move.

The new policy takes effect immediately, notwithstanding a number of unanswered questions. The facts in this case involved a transfer of an H-1B employee from one Metropolitan Statistical Area (MSA) to another, where the prevailing wage for the job performed by the foreign worker was considerably higher than in the initial worksite location. However, it would be imprudent to read the decision as only applying to that specific fact scenario. The AAO did not address the question of whether an amended petition is required where the employee moves to a new location within the MSA and does not require a new LCA, but the discussion in the body of the decision, as well as the footnotes, suggests that there are reasons other than requiring a new LCA which may require an amended petition.

The AAO repeatedly cited 8 CFR § 214.2(h)(2)(i)(E)—which provides that a change in the terms and conditions of the beneficiary’s employment is a material change—and 8 CFR § 214.2(h)(11)(i)(A), which requires a petitioner to file an amended petition to notify USCIS of any material changes affecting eligibility for H-1B status or be subject to revocation. A move across the street or across town may not implicate any wage requirements, but relocations within the same MSA may involve other material changes, such as a change in supervision and control of the employee at the new location. This has been a major focus of USCIS scrutiny in recent years, since the release of the so-called “Neufeld memo,” which created a new requirement than an H-1B petitioner establish that an employer-employee relationship exists with the beneficiary, and that it will continue to exist throughout the duration of the requested H-1B validity period, including when the employee is placed at a third-party worksite.

Most important, there is high enforcement exposure since audits by USCIS’ Fraud Detention and National Security (FDNS) Directorate have become so common, and experience indicates that investigating officers will most likely take the position that a valid petition is always required for each worksite where an employee may work.

There are more unanswered questions. For example, the AAO did not address whether the H-1B portability rule applies in this situation, but clearly it should. Under the H-1B portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21), a person already holding H-1B status who becomes the beneficiary of an H 1B petition filed by a new employer can start working for the new employer upon the filing of the petition, rather than needing to await petition approval. The same rule should apply to an H-1B employee who is simply moving to work in another location for the same employer.

Most troubling may be the fact that the AAO decision did not address how this new ruling applies to existing assignments, where employees have already been relocated to a different location than was listed in the original H-1B petition. USCIS needs to provide an effective date for what is essentially a new rule or guidance and make the change in policy prospective only. Otherwise, all employees who have relocated to areas where there are valid LCAs but where no amended H-1B petition was filed could be considered to be out of status. Unless USCIS decides to apply the decision prospectively only, the new rule theoretically applies to any H-1B employee who was relocated without the filing of an amended petition. Accordingly, employers will need to determine which employees are affected and file amended petitions to cover prior location changes as soon as possible (in the absence of specific USCIS guidance, filing within 30 days is probably reasonable).

Similarly, it may be difficult for employers to suspend certain H-1B location changes that are in process and that would have met prior agency guidelines. But employers should work to file amendments as soon as possible after new location changes to minimize the risks of noncompliance with the new policy. If no amendment is filed, the employer could face the denial of a future application to extend the beneficiary’s status, and could also face revocation of the H-1B petition.

Business immigration advocates will be working to convey to USCIS the watershed effect of the AAO’s decision. Advocates must stress the importance of clear guidance and a reasonable implementation period that will minimize business disruptions for employers.