UNITED STATES (April 9, 2015) – Employer must file new or amended H-1B petition for employee's change in location, AAO rules.
A change to an H-1B employee's place of employment to a geographical area that requires the filing of a new Labor Condition Application (LCA) constitutes a "material change in the terms and conditions of employment," and the employer must file a new or amended H-1B petition, the Administrative Appeals Office (AAO) has ruled in affirming a decision by U.S. Citizenship and Immigration Services.
The employer, an information technology company, attested in its original H-1B petition that the employee would be stationed at its Long Beach, California facility, but later confirmed that the employee was no longer working on the same project or at the same location, and submitted a new LCA naming two other worksites as the employee's places of employment: Camarillo, California, and Hoboken, New Jersey. In the original H-1B petition, the company attested that it would pay the employee an annual salary of $50,232 – a wage that proved to be $9,000 less than the wage required by law in the two locations where the employee was actually working.
Because the original wage attestation was now insufficient and no longer corresponded with the new LCA, the AAO found that this change in place of employment affected the employee's underlying eligibility for H-1B status. The AAO concluded that this was therefore a material change in the terms and conditions of employment, which triggered the employer's obligation to "immediately notify USCIS and file an amended or new H-1B petition, along with the corresponding LCA certified by the Department of Labor, with both documents indicating the relevant change."
The case is Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015).
BAL Analysis: This decision will have an immediate impact on the way in which H-1B cases are processed, as employers must now file a new or amended H-1B petition in all cases involving a geographic change of place of employment that requires the filing of a new LCA.
Source: Berry Appleman & Leiden LLP
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