Change in worksite location considered a substantial change of H-1B terms

In a recent decision the U.S. Citizenship and Immigration Services’ (USCIS’) Administrative Appeals Office (AAO) ruled against an employer for not filing an amendment petition when it relocated the H-1B beneficiary to a different worksite.

The Matter of Simeio Solutions, LLC., is a precedent decision where the AAO held that the employer should have filed an amendment H-1B petition when they relocated their H-1B employee. USCIS conducted a site visit to verify the employment based on the underlying H-1B petition. When USCIS found the beneficiary was working at a different location USCIS revoked the H-1B petition and the AAO upheld the revocation. This decision contradicts the current practice of simply obtaining a certified Labor Condition Application (LCA) and meeting the other LCA obligations for the new worksite prior to relocation.

The previous practice was established through a letter issued in 2003 by Efren Hernandez III, the director of the Business and Trade Branch of USCIS, that stated, as long as the LCA was certified and other LCA obligations were met prior to the employee starting work at a new worksite, no material changes existed which would require the filing of an amended H-1B petition.

In The Matter of Simeio Solutions, LLC., the H-1B beneficiary was working in multiple worksites outside the city listed on the certified LCA that was submitted to USCIS with the underlying H-1B petition. This led the AAO to agree with USCIS that an H-1B amendment was necessary to notify USCIS of such a substantial change in the terms of the occupation. This decision from the AAO unfortunately does not address if an amendment filing will be necessary where the new worksite is within the same city or if the relocation is only across the street. This along with a few more unanswered technicalities suggests that the immigration service will need to issue a policy memorandum shortly to clarify the reaches of this precedential decision. Our office will keep track of these developments but for the moment we recommend that our corporate clients notify us whenever there is any change in the terms of the H-1B employment.

UPDATE: H-4 spouses can file EAD applications beginning May 26th 2015

On May 26, 2015, USCIS will begin accepting applications from qualified spouses of H-1B holders. In order to be eligible to file the application the spouses must currently be in the U.S. on H4 status and the principal H-1B spouse must:

  1. have an approved I-140 or
  2. have been granted extensions beyond the six-year H-1B limit by virtue of a labor certification application or employment-based immigrant petition that was pending for at least one year.

USCIS has also stated that it will accept either stand-alone EAD applications or applications that are filed along with extension requests.

Please note that USCIS’ current processing time for EADs is about 90 days and they expect to receive about 150,000 applications under this new classification so expect slower processing time and plan accordingly.