What’s Happening

On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) published a decision regarding whether a change in employee worksite constitutes a 'Material Change' for H-1B employment, thus necessitating the filing of an amended H-1B petition.

In Matter of Simeio Solutions, LLC, the AAO held that a change in work location outside the geographical area covered on the existing Labor Condition Application (LCA) submitted with the initial H-1B petition constitutes a material change and therefore requires the filing of a new or amended H-1B petition with a corresponding new LCA. 

Specifically, the decision states:

(1)   A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2)   When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

The regulations are clear that a change in the terms and conditions of employment which may affect the beneficiary’s eligibility for H-1B status constitutes a material change which would require the filing of a new or amended petition to notify USCIS of the change. Agency guidance, however, had previously suggested that “the mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.” While USCIS adjudications on this issue have recently become stricter, there was not previously an official change in USCIS’s policy on this issue prior today’s AAO decision.

In deciding the case, the AAO reasoned that, due to the LCA and prevailing wage requirements, a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material for both the LCA and the Form I-129 visa petition. The agency cited instances where the prevailing wage would be higher at the new place of employment, and reasoned that the beneficiary’s eligibility for continued employment in H−1B status will depend on whether his or her wage as attested to on Form I-129 will be sufficient for the work performed at the new location. 

What this Means

In light of this decision, a new or amended H-1B petition must be filed in any case where an employee will be moved outside the geographical area covered on the LCA filed with the initial H-1B petition (with the exception of certain short-term placements).[1] Petitioners are required to file an amended or new H−1B petition along with a corresponding LCA certified by the DOL to reflect the relevant change in work location.

Things to Keep in Mind

Company officials and other staff making personnel decisions, particularly decisions to transfer employees from one work location to another, should be made aware of the decision and its impact on the employee’s H-1B visa. Going forward a new or amended H-1B must be filed in any case where an employee will be moved outside the area covered on his or her LCA.[2] Please notify our office immediately of any planned relocations. It is not yet clear how USCIS will treat new or amended H-1B petitions filed for employees who have already changed worksites. We will continue to review and monitor this decision and provide updates as new information becomes available,


[1] The regulations allow for 30 days total per year (not per location)  of short-term placement at a worksite not covered on the initial H-1B and LCA except that in some instances 60 days is permitted (this is the maximum) if the employer can demonstrate the certain additional requirements are met.

[2] The area covered by an LCA is typically defined as the area within “normal commuting distance” of the worksite or within the same Metropolitan Statistical Area (MSA) as the worksite.