Change in H-1B Work Location – To Amend or Not to Amend?
Our office handles a substantial number of H-1B work visa petitions for a variety of U.S. employers and we often share our direct experiences with the H-1B work visa program. This article is intended to share our experience and the current trends with respect to H-1B work visa petitions where there is a change in the job location once the H-1B work visa petition has been approved and during its validity term. The lack of clear, direct and consistent guidance by USCIS makes it ever more important to carefully analyze a particular H-1B change in job site situation to avoid H-1B status disruption and/or revocation.
The Problem – H-1B Workers Changing Job Locations
Many companies, and especially IT consulting companies who hire H-1B workers and place them at third-party client sites, are well familiar with this situation. It is very common for these H-1B workers to change projects, end clients or simply to relocate to a different client site during their H-1B validity period (which is 3 years most often). In such cases, the question arises, What should be done to ensure that the H-1B employer and employee remain in compliance with the relevant H-1B regulations?
There is fair amount of confusion among H-1B employers and workers with respect to their obligations when there is a change in the work location. Below we discuss what is the currently recommended approach and also recent USCIS developments in this area.
The Law: Material Change in Terms of Employment Requires H-1B Amendment
The relevant regulations are fairly clear — 8 CFR 214.2(h)(2)(i)(E) states:
The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.
Also, petitioners are required to notify USCIS immediately if the terms and conditions of the H-1B petition “may affect eligibility”. 8 CFR 214.2(h)(11)(i)(A) (emphasis added) states:
The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary.
In this context the question arises, Does a change in the place of employment only, without any additional changes in the terms of employment (salary, title, duties) constitute a material change and/or whether such change “may affect eligibility” for H-1B?
The LCA/H-1B Amendment Guidance Evolution
In the past, some H-1B employers have been able to rely on unclear guidance by USCIS as to whether a new LCA for a new jobsite location requires an amendment. For example, in an October 23, 2003 Letter from Efren Hernandez III, Dir., Bus. and Trade Branch of USCIS, Mr. Hernandez specifically expresses guidance that H-1B amendment is not required where the H-1B worker is placed at a new location as long as there is an LCA for this new jobsite. Over the past years, however, this guidance has been slowly and gradually superseded by a more strict interpretation of the H-1B regulations.
However, in California Service Center discussions from 2011, some of which were prompted by a number of “Notice of Intent to Revoke” notices, it became apparent that the California Service Center started to consider a change in the job location a “material change” and, as a result, requiring an H-1B amendment to be filed. According to the California Service Center, as of August 10, 2011, “it is the position of
As a result of the lack of clear guidance from USCIS headquarters, the California and Vermont Service Centers (the two service centers responsible for H-1B) had adopted their own and different approaches. California took the more stringent position that a new LCA due to change in the jobsite is a material change requiring amendment, while Vermont had been more lenient in this interpretation. This has caused many employers to rely on the relaxed Vermont treatment and proceed for an LCA only when an H-1B worker changes jobsites. Even during the last few years, our recommendation had been to err on the side of caution and consider filing an H-1B amendment with USCIS at all times, even for Vermont Service Center H-1 cases.
Change in Job Location Requiring a New LCA Is Material Change and Requires H-1B Amendment Filing
Recent trends coming from the Vermont Service Center and from recent Administrative Appeals Office (AAO) indicate that USCIS may be adopting a more uniform and more stringent approach to handling H-1B petitions with a job location change. This means that USCIS is adopting the California Service Center approach of requiring H-1B amendment for each LCA jobsite change. For example, in a non-precedent AAO decision dated as of July 23, 2014, USCIS explicitly overruled the 2003 Hernandez letter and took the position that the Vermont Service Center properly revoked an H-1B petition where there was a jobsite change and LCA without an H-1B amendment filing.
Based on recent trends we see in both the California and Vermont Service Center H-1B cases, it is becoming clear that the best approach to H-1B compliance in change of worksite situations is to consider a new LCA and an H-1B amendment filing before the beginning of the new worksite placement.
We understand that the H-1B amendment filing incurs an additional cost but this cost of compliance should be compared to the possibility of H-1B revocation and the significantly higher monetary and business opportunity cost of H-1B status and business relationship disruption in the event of H-1B audit or revocation proceeding.
Conclusion
We are aware that USCIS is working on official guidance on this topic which would, hopefully, provide more clear guidance applicable to both service centers. Unfortunately, there is no known or anticipated release date. In the meantime, based on recent developments and trends we see, we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite. We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance. H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans. Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.
About the Author: Dimo Michailov
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The Capitol Immigration Law Group has been serving the business community for over 15 years and is one of the most widely respected immigration law firms focused solely on U.S. employment-based immigration. Disclaimer: we make all efforts to provide timely and accurate information; however, the information in this article may become outdated or may not be applicable to a specific set of facts. It is not to be construed as legal advice.