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?
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 [California Service Center] Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”
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 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.
<Capitol Immigration Law Group Newsletter Vol. VII, No. 25>