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AAO says employer must file amended H-1B if new LCA is needed

H-1B LocationsIn a recent decision the Administrative Appeals Office affirmed the revocation of an H-1B petition where the geographical location of employment had changed triggering a requirement for a new Labor Condition Application.  In Matter of Simeo Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO determined that a change in the beneficiary’s location of employment is a material change to the terms and conditions of employment as originally listed in the H-1B petition.  Because such change is material, the petitioning employer was required to file an amended H-1B petition corresponding to a new LCA that reflects the change.  The AAO noted that Section 212(n) of the Immigration and Nationality Act ties the prevailing wage to the “area of employment.”  Therefore, the AAO reasoned, “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 H-1B petition, since such change may affect eligibility for H-1B petition.

Background

In this case, the employer filed H-1B petition changing the beneficiary’s status from F-1 student to H-1B employee.  In the  Labor Condition Application and the H-1B petition, the employer identified an

address in Long Beach, California (Los Angeles-Long Beach-Santa Ana, CA Metropolitan Statistical Area) as the beneficiary’s place of employment.   After working for the petitioner in H−1B status for approximately 2 months, the beneficiary left the U.S. and applied for an H−1B visa stamp at the United States Embassy in New Delhi, India, based on the approved petition. The consular officer, after talking to the foreign national, requested additional information in connection with the locations of employment.  Eventually the consular officer returned the petition to USCIS for review based on the information the consular officer had learned regarding the additional work locations.  The USCIS conducted a site visit at the Long Beach location, and found that the employer had left this location.   In response to a Notice of Intent to Revoke, the employer informed the USCIS that the beneficiary now worked out of two new worksites  – Camarillo, California (Oxnard-Thousand Oaks-Ventura Metropolitan Statistical Area), and Hoboken, New Jersey (New York-Newark-Jersey City, NY-NJ-PA Metropolitan Statistical Area).  The employer also submitted a new Labor Condition Application for these two locations.

Analysis

The USCIS revoked the petition.  The Service noted that both worksites were located in metropolitan statistical areas different from the original worksite listed on the approved petition.  It also noted that the prevailing wages at these new locations were $9,000 higher than the originally stated work location.  The USCIS Director concluded that “the changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition.”  Therefore, the USCIS concluded that the employer was required to file an amended Form I-129 corresponding to a new LCA that reflects these changes. The petitioner failed to file an amended petition, and accordingly, the Director revoked the nonimmigrant visa petition, and the AAO affirmed the revocation.

Important Points

When an employer changes the work location of H-1B employee to a geographical area that is outside the metropolitan statistical area, the DOL regulations require the employer to file a new Labor Condition Application. The USCIS considers this new Labor Condition Application a material change in the condition of H-1B employment, requiring an amended H-1B petition.  Therefore, an employer which is considering changing the work location of an employee in H-1B status should contact its H-1B immigration attorney before relocating the employee.