On April 9, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a precedential decision concerning an employer’s obligation to file an amended H-1B petition in certain scenarios involving a change in worksite. The decision by the Administrative Appeals Office (AAO)—USCIS’s administrative review body—is the culmination of a shift in agency policy on this matter.
By regulation, an H-1B employer is required to file an amended petition if there is a “material change” in the terms and conditions of employment of the foreign national beneficiary. Historically, USCIS (and the legacy Immigration & Naturalization Service) issued vague and often contradictory guidance on whether a change in worksite constituted such a material change. In recent years, however, the agency started to signal a shift in policy, and the AAO decision in Matter of Simeio Solutions, LLC now clarifies the matter definitively. Henceforth, a change in the place of employment to a geographical area that triggers the need for a new Labor Condition Application is a material change that requires the filing of an amended H-1B petition.
The rationale for the AAO’s decision appears to be principally based on the wage obligations that may be associated with a change in worksite. Under the H-1B regulations, an employer must pay a wage that is at least the higher of the prevailing wage or the actual wage for similarly employed workers. A principal factor in determining the prevailing wage is the geographic area of employment: markets with higher costs of living usually command higher wages and typically correspond with higher required H-1B wages. The AAO’s emphasis on the employer’s wage obligation is perhaps a bit misplaced, though; regardless of the new requirement to file an amended H-1B petition, an employer has always been required to adhere to the U.S. Department of Labor (DOL) regulations concerning payment of wages to H-1B employees.
What is the Impact on Employers?
Although the immediate response to the decision in Matter of Simeio Solutions accused USCIS of a radical policy change that ignored years of contrary guidance, a careful analysis suggests the impact on employers will be minimal. In view of the prior “unofficial” policy shifts, many (perhaps most) H-1B employers already file amended H-1B petitions in worksite changes now encompassed by the recent AAO decision. This practice was accelerated in 2009 with the advent of the Administrative Site Visit and Verification Program, wherein officers of the Fraud Detection and National Security (FDNS) Directorate conduct unannounced site inspections to ensure employer compliance with visa petitions. A site inspection that revealed an H-1B beneficiary was not employed at the worksite listed in the H-1B petition often created a presumption of fraud; for employers, the effort associated with filing amended H-1B petitions was preferable to the time and costs associated with challenging such a negative FDNS finding.
What Doesn’t Change?
It is equally important to note two scenarios that are not altered by the AAO decision. First, an employer that relocates an H-1B employee to another company worksite within the same metropolitan area is generally not obligated to file an amended H-1B petition (provided there are no other changes to the terms and conditions of employment). Such a change does not require a new Labor Condition Application under DOL regulations (which involves an analysis of commuting distance), and therefore does not require an amended H-1B petition.
Second, the AAO decision does not change the framework of so-called “short-term placements or assignments.” Pursuant to DOL regulations, an H-1B beneficiary may temporarily perform services at worksites not listed on the Labor Condition Application, provided the employer adheres to certain guidelines concerning duration and remuneration, among other items. Practically, this situation often arises in travel for business meetings or visits to client sites. Since these scenarios do not require the filing of new Labor Condition Applications, they likewise do not require the employer to file amended H-1B petitions.
Jacob D. Cherry is an associate in the Raleigh office of Ogletree Deakins.
