In a controversial ruling last month that changed years of established policy, the Administrative Appeals Office (AAO) issued an H-1B precedent decision. At issue was whether an employer is required to file not only a new Labor Condition Application (LCA) but also an amended H-1B petition with the US Citizenship and Immigration Services (USCIS) when an H-1B employee's worksite is changed to a location that is outside the geographical location approved in the original H-1B petition.
The USCIS issued guidance on May 21, 2015 with further clarification on open issues, including when an H-1B petition actually needs to be amended. The guidance confirms that an amendment is not necessary when an employee moves to a new site within a metropolitan statistical area (MSA) or area of intended employment.
While changes in employer and position have been relatively clear, employer responsibilities related to changes in worksite location have been historically murky, in part due to fluctuations in legacy INS and USCIS interpretations. The issue adjudicated by the AAO dealt with a worksite change including a higher prevailing wage required in the new location. USCIS guidance provides clarity on circumstances in which an amended petition is required.
Specific instructions for H-1B users:
1. An amended petition is required when:
- H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the MSA or an "area of intended employment"
- Once the amended petition is filed, the H-1B employee can immediately begin to work at the new location, even while the petition is pending
2. An amended petition is not necessary for:
- A move within an MSA
- Short term placements for 30 days or 60 in limited circumstances
- Non-worksite locations
What does this mean for my company?
If you have H-1B employees and the possibility exists they are no longer working within the MSA originally approved in the immigration petitions, consider conducting a file audit of all active H-1B files. In particular, staffing companies that place employees at various customer sites, retailers with a national footprint, employers who allow for telecommuting, technology and 3rd party placement companies and companies that have physically moved should review their immigration rosters and consider the implications of the recent guidance.
Recognizing that employers relied on alternative guidance issued in 2003 by Efren Hernandez, III, Director, Business and Trade Branch, the USCIS was practical in providing a grace period to allow employers to file retroactive amendments. Employers may file amended petitions by August 19, 2015, to avoid being considered "out of compliance with USCIS regulation and policy and subject to adverse action". Failure to file will affect the H-1B employee, considering him/her to not be maintaining his/her nonimmigrant status.
While the new AAO decision may not be welcomed by employers, the flexible USCIS guidance provides consistency and clarification. Taken together, they are in effect a mandate for certain H-1B employers to assess their prior policies, change procedures where necessary, and move quickly to file amendments for H-1B workers who may no longer be in compliance with the provisions of their approved H-1B employment. We expect increased activity and targeted review of site changes by the National Fraud Detection and National Security Directorate (FDNS), which conducts unannounced site inspections to verify information contained in visa petitions.
Employers of sponsored foreign nationals should always consult experienced immigration counsel regarding any changes in the terms and conditions of employment, including changes to the structuring or ownership of the employer. Employers who sponsor non-immigrants must be attentive to all visa related regulations, ensuring adequate monitoring and implementation of internal compliance.
For More Information
For more information on how the AAO decision or subsequent USCIS guidance may affect your company's immigration concerns, please contact the authors or a member of Polsinelli's Immigration practice.