Modernizing PERM on DOL’s Agenda

In November 2014, the White House released a Presidential Memorandum directing agency heads to make recommendations for improving the U.S. immigration system. In tandem with the release of President Obama’s November 21, 2014 Memorandum, Department of Homeland Security Secretary Jeh Johnson also issued a Memorandum dated November 20, 2014, instructing the U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement implement new policies and regulations designed to “support our country’s high-skilled businesses and workers by better enabling U.S. businesses to hire and retain highly skilled foreign-born workers while providing these workers with increased flexibility to make natural advancements with their current employers or seek similar opportunities elsewhere.” 

In addition to the above documents, the U.S. Department of Labor (DoL) contemporaneously released a Fact Sheet wherein the DoL acknowledges it has not comprehensively examined or modified the permanent labor certification requirements and process (PERM) since its inception ten years ago. As a result, the existing PERM regulatory structure may not align with evolved industry recruitment methods resulting from advances in technology and information dissemination.

Upon such recognition, DoL announced its intent (in the Fact Sheet) to initiate a review of the PERM program and seek stakeholder input on points such as: identifying occupational shortages and surpluses; modernization of recruitment requirements to test the labor market; clarifying the employer’s obligations regarding PERM positions and U.S. workers; case processing timeframes; the possibility of premium processing; and, the feasibility for efficiently addressing nonmaterial errors.

More recently, the DoL published modernization of the PERM process as part of its regulatory agenda. Therein, DoL noticed engagement in rulemaking to consider options to administer the PERM program in a manner more responsive to changes in the national workforce, to further align the program design with the objectives of the immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.   

Although much too early to celebrate, those familiar with the PERM application process should at least welcome the fact modernization of the PERM regulations is on DoL’s present agenda and is consistent with the thrust of the November 2014 memoranda by President Obama and Secretary Johnson. Sharma Law Offices will continue to monitor and report on material events relevant to DoL’s efforts in this regard.  

DHS Permits Part-Time F-2 and M-2 Study and Removes DSO Cap

In our May 29, 2015 article H-4 EAD for Certain Dependent Spouses Now in Effect, we reported on the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) new rule allowing certain H-4 dependent spouses of H-1B employees to apply for employment authorization. A stated purpose of the new H-4 EAD provision is to increase U.S. global competiveness for highly skilled workers through amelioration of disincentives, economic burdens, and personal stresses of H-1B employees and their families.

Effective May 29, 2015, the DHS also amended its regulations under the Student and Exchange Visitor Program (SEVP) to expand opportunities for spouses and children of international students to engage in a course of study. Similar to the H-4 EAD provisions mentioned above, enhancing U.S. global competitiveness for the best and brightest international students (highly skilled workers in the case of the H-4 EAD) is a basis for the May 29, 2015 SEVP amendments.

Essentially, under prior regulations, F-2 and M-2 spouses of academic or vocational students with F-1 or M-1 status were prohibited from engaging in “full time” academic or vocational studies. F-2 and M-2 children could only engage in full time study if the study was in an elementary or secondary (K-12) school.

Now, per the amended SEVP regulation, F-2 and M-2 spouses and children can enroll in less than a “full course” of study in a SEVP certified school. Less than a full course of study is typically considered study less than the 12 credit hours defining a full time course load. Full time elementary and secondary study for F-2 and M-2 children is still allowed.

In addition, under the old rule, SEVP certified schools were permitted to nominate a maximum of 10 designated school officials (DSOs) to act as liaisons between the school and the SEVP in order to ensure compliance with laws regulating international students. Now, SEVP certified schools are allowed to nominate as many DSOs deemed necessary to adequately provide services such as recommendations, record keeping, and reporting with respect to F and/or M students enrolled at the school. Again, one reason for lifting the 10 DSO cap is increased flexibility ultimately resulting in enhanced attractiveness for international students to study in the United States.  

Sharma Law Offices, a highly rated Atlanta Immigration Law Firm, actively monitors rule amendments – like those discussed above – which potentially expand rights afforded under prior regulations. We are, of course, available for consultation regarding applicability to your particular set of circumstances.

BIA decision on Priority Date Retention at Odds with Longstanding USCIS Policy

Recently, the Board of Immigration Appeals (BIA) issued a non-precedential decision – In re: Grace Estrellado – that merits attention because the result appears contrary to the U.S. Citizenship and Immigration Services’ (USCIS) policy regarding priority date retention.

More specifically, under past practice, USCIS allows a beneficiary of a new I-140 to retain the priority date from a previously approved I-140 petition after the first I-140 was withdrawn or revoked as a result of the beneficiary’s move to a new employer. An exception to this policy occurs when the original I-140 is revoked based on a government finding of fraud or willful misrepresentation. In another related scenario, USCIS allows for priority date retention occasioned by the beneficiary’s “upgrade” to a different employment based category (i.e., EB-3 to EB-2) than originally approved.

The ability to retain the priority date applicable to an earlier approved I-140 is significant because it enables the beneficiary to change positions or employers without prolonging the wait for a green card based on a later priority date applicable to more recently approved I-140 petition. In the case of an “upgrade”, EB-2 priority dates may become current sooner than the EB-3 category. Therefore, a beneficiary may obtain a green card more quickly if the priority date applicable to the previously approved I-140 (EB-3) ports to a subsequently approved 1-140 under the EB-2 classification.

Under the facts of In re: Grace Estrellado, the respondent, Grace Estrellado, was the beneficiary of an approved I-140 petition with a 2006 priority date. Ms. Estrellado subsequently obtained another job and was sponsored by the new employer for a green card. As a result, Estrellado became the beneficiary of a second approved I-140 with a 2011 priority date. Estrellado argued the 2006 priority date should apply to the new I-140 and enable her to immediately adjust status because the old priority date had since become current. However, the Immigration Judge, and the BIA on appeal, determined Estrellado was not eligible to retain the 2006 priority date because the first I-140 had been withdrawn by the earlier employer and its approval thereafter revoked. In so holding, BIA appeared to strictly apply regulations stating revoked petitions do not confer priority dates totally apart from the context of longstanding USCIS interpretation and policy allowing for (in the absence of fraud or willful misrepresentation) priority date retention in instances where the predecessor I-140 had been revoked by operation of changing employers.

It is important to emphasize In re: Grace Estrellado is a non-precedential BIA decision and, as such, is only binding as to the four corners of that particular case. Nevertheless, the holding – that the beneficiary may not utilize the priority date from her original I-140 petition because her prior employer withdrew the I-140 and its approval was thereafter revoked by USCIS – appears to ignore (or affords no weight) to prior government practice to the contrary.

The above case illustrates past government practice is not a guarantee and is – at times – subject to piecemeal and seemingly inconsistent interpretations. At Sharma Law Offices, we strive to keep current with respect to such contingencies, and likewise advise consultation with an experienced immigration attorney prior to a changing one’s employment status.

H-4 EAD for Certain Dependent Spouses Now in Effect

Effective May 26, 2015, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS), under its new final rule, began accepting applications for employment authorization for certain H-4 dependent spouses of H-1B employees who seek employment-based lawful permanent resident (LPR) status. The USCIS has accordingly amended its Instructions for I-765, Application for Employment Authorization, and corresponding I-765 application form (revision date February 13, 2015), to incorporate the new regulation.

Under prior regulations, H-4 spouses were not eligible for employment authorization. Now,  under the new rule, H-4 spouses are eligible for employment authorization documents (EADs) if the H-1B employee is the principal beneficiary of an approved Immigrant Petition for Alien Worker (I-140) or the H-1B employee received an extension beyond the six year H-1B maximum via a Permanent Labor Certification Application (PERM) filed at least 365 days prior to expiration of the 6 year limitation or if the H-1B’s preference category does not require a PERM, and he or she filed a currently pending I-140 at least 365 days prior to the 6 year expiration date.     

In a news alert on May 20, 2015, NewsAlert! H-4 EAD FAQ’s released, we announced the USCIS updated its webpage with eligibility requirements, filing guidance, and frequently asked questions (FAQs) with respect to its new H-4 employment authorization rule. Here, we will provide an overview of some of the more effectual aspects of USCIS’ FAQs/guidance as follows:

  • Filing for an H-4 EAD is not a one time opportunity. One may file after May 26, 2015, and may file to renew as long as eligible;
  • There is no cap on the number of I-765 (H-4 EAD) applications;
  • 90 days is the expected processing time for H-4 EAD applications;
  • Presently, H-4 EAD applications are only accepted in paper form (i.e., no electronic filing) and premium processing is not available;
  • In order to apply, one must be currently in valid H-4 status. An individual outside the U.S. cannot be in H-4 status. Therefore, one must be physically present in the U.S. to apply for an H-4 EAD;
  • If approved, the H-4 EAD expiration date will generally match the H-4 status expiration date;
  • Initial H-1B and H-4 petitions/applications may be filed concurrently with an initial H-4 EAD application – however, the 90 day clock for the H-4 EAD application will not begin until a decision on the underlying H-1B and H-4 applications;
  • H-1B and H-4 extension of stay applications (I-539 Application to Extend/Change Nonimmigrant Status) may be filed concurrently with an H-4 EAD application – however, if a previously filed I-539 is pending – USCIS recommends waiting until the pending I-539 is decided until filing an H-4 EAD application in the first instance;
  • Both the H-4 EAD applicant spouse and the H-1B spouse must maintain status for H-4 EAD eligibility – therefore, absent extensions of stay, H-4 spouses are not initially eligible for an EAD if USCIS revoked the H-1B’s I-140 petition;
  • It is not necessary for the H-1B spouse’s approved I-140 to have been filed by his or her current employer in order for the H-4 spouse to be eligible for employment authorization;
  • USCIS retains discretion to revoke an H-4 EAD if the H-1B spouse subsequently loses an approved I-140 or is otherwise no longer eligible for H-1B status;
  • The H-4 EAD authorized under the new rule is “unrestricted” and, as such – is not limited to a specific employer, allows self-employment and starting one’s own business, and the H-4 spouse and/or business may employ other people;
  • Travel abroad is permitted for an H-4 EAD applicant who is in valid H-4 status – but the applicant remains responsible for timely providing USCIS additional evidence or responding to notices associated with the application while out of the country;
  • If not in current valid H-4 status, such as when an H-4 EAD application and I-539 are filed concurrently requesting a change to H-4 status – travel abroad results in abandonment of the I-539 and therefore denial of the companion H-4 EAD application; and
  • An H-4 EAD is not a travel document – if traveling abroad, individuals need separate travel documents such as a passport and H-4 visa to return to the United States.

The above is a synopsis of some of the operative USCIS FAQs with respect to the newly implemented H-4 EAD regulation. We condense and summarize them here as a service to our readers. It is not intended as legal advice. The USCIS’ interpretations as to how it administers the new H-4 EAD rule and attendant application process may also evolve over time. We at Sharma Law Offices, LLC, stand ready to assist you with any questions you may have regarding your particular set of circumstances.

NewAlert! August 19, 2015 Deadline For Filing Amended H-1B Petitions

As reported in our previous blog Worksite Change Requires Amended H-1B Petition, the U.S. Citizenship and Immigration Services (USCIS) on May 21, 2015 rendered written guidance on when to file an amended H-1B petition based on its interpretation of the Simeio Solutions holding. 

To recap, in Simeio Solutions, the AAO determined a geographic change in an H-1B employee’s worksite location constituted a material change and required both a new Labor Condition Application (LCA) and an amended Form I-129 or H-1B petition.

Under the facts in Simeio, the H-1B employee moved from the worksite identified on the original LCA and H-1B petition to two different worksites each located in different Metropolitan Statistical Areas (MSAs) than originally listed. The AAO emphasized the prevailing wage delineated in the employee beneficiary’s original filings were tied to the geographic area of employment. One reason changing the employee’s authorized place of employment effectuated a material change was because the beneficiary’s salary reflected in the original filings was based on a prevailing wage less than applicable to the new worksites. Accordingly, the AAO determined the H-1B petitioner was required to “immediately notify USCIS and file an amended or new H-1B petition, along with a corresponding LCA certified by DOL, with both documents indicating the relevant change.” 

The May 21, 2015, USCIS Guidance expounds upon the Simeio Solutions decision and instructs when to file an amended H-1B petition after a change in worksite location.

Importantly, the Guidance applies retroactively and requires amended H-1B petitions for employees changing worksite locations before May 21 and also for relocations at or before the Simeio Solutions decision dated April 9, 2015. The USCIS allows 90 days from the May 21 Guidance, or until August19, 2015, to “file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition.”

Under the Guidance, the H-1B employee does not need to wait for a final decision and can immediately begin work at the new location once the amended H-1B petition is filed. Moreover, if the amended petition is denied, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain status at the original worksite. The petitioning employer and beneficiary employee may both be subject to adverse action if an amended H-1B petition is not filed for an H-1B employee who relocates to a worksite outside the MSA by August 19, 2015.

The USCIS Guidance also provides for instances when an amended H-1B petition is not required, that is: 1) when the geographic move is “within the same MSA or area of intended employment”; 2) when the geographic move is for short-term placements up to 30 days (or 60 days in particular situations); or, 3) when the employee is only traveling to certain types of non-worksite locations such as for seminars or on a casual short term basis where the primary job site remains intact.   

Please feel free to contact the Sharma Law Offices regarding any issues raised by the content of this blog as it relates to your particular set of circumstances, or for assistance with other H-1B matters of concern.

NewsAlert! H-4 EAD FAQ’s released

We are delighted to announce that few minutes back the U.S. Citizenship & Immigration Services (USCIS) updated their webpage with information on Employment Authorization for Certain H-4 Dependent Spouses. This webpage includes eligibility requirements, filing guidance and answers some of the frequently asked questions (FAQs)

We are in the process of reviewing the information provided by the USCIS and will shortly post detailed information for our clients.

Employer Responsibility for Terminating H-1B Employees (Update)

In our February 9, 2014 blog Employer Responsibility for Terminating H-1B Employees, we discussed an employer’s responsibility for ending the employer/employee relationship of H-1B employees. In that blog, we explained an employer must effect a bona fide termination of an H-1B employee’s employment in order to avoid back wage liability. At the time of the blog, the leading decision on this subject was the Department of Labor, Administrative Review Board’s (ARB) holding in Amtel Group of Fla., v. Yongmahapakorn. In Amtel Group of Fla., the ARB panel of administrative law judges set forth three requirements to effect a bona fide termination of H-1B employment and end an employer’s obligation to pay wages promised under the terminated employee’s Labor Conditional Application (LCA): (1) expressly terminate the employment relationship with the H-1B employee; (2) notify the United States Citizenship and Immigration Services (USCIS) of the termination so that the I-129 petition may be cancelled, and; (3) provide the terminated H-1B employee the reasonable cost of return transportation to his or her home country.

Subsequent to our February 2014 blog, the ARB issued another important decision in Batyrbekov, v. Barclays Capital. In Barclays Capital, the ARB panel addressed a situation where a terminated H-1B employee sought back wages on the theory his former H-1B employer did not effectuate a bona fide termination under the three-part test set forth in the Amtel Group of Fla. decision. More specifically, the employer in Barclays neglected to notify USCIS of the H-1B employee’s termination and did not initially pay for the employee’s travel home. However, under the facts of the Barclays case, the terminated employee’s H-1B employment status was transferred (or “ported”) to another employer via an approved H-1B “change of employer” petition. The ARB in Barclays found the three-part test in Amtel does not govern a situation where a new employer obtains USCIS approval to hire the terminated H-1B employee after the previous employer has given clear notice of termination to the H-1B employee.

Thus, to synthesize the two ARB decisions: (1) the Amtel three-part definition of bona fide termination does not strictly apply to cases with multiple H-1B employers; and, (2) in cases involving multiple H-1B employers, back wage liability may cease if the employer expressly notifies the H-1B employee of termination and the employee thereafter secures USCIS approval for a change of employer.

The above is a synopsis of the Amtel and Barclays ultimate conclusions which were, in turn, based upon the totality of many facts underlying each decision. Each individual H-1B termination will present a unique set of circumstances that may require detailed legal analysis by an experienced attorney. Despite the ruling in Barclays Capital, we still recommend H-1B employers to abide by the three-part definition laid out in Amtel.

Overview of L-1B Policy Memorandum

On March 24, 2015, the United States Citizenship and Immigration Services (USCIS) issued its Policy Memorandum on L-1B visa adjudications. The Memorandum will update the Adjudicator’s Field Memorandum guiding USCIS personnel on determining the merits of L-1B visa petitions. The USCIS issued the L-1B Memorandum with an invitation for public review and feedback. The feedback period closed Friday, May 8, 2015. According to USCIS, the Memorandum becomes effective on August 31, 2015, which allows sufficient time to train USCIS employees.          

Generally, the L-1 nonimmigrant visa allows multinational companies to transfer employees from foreign operations to the United States. Within the L-1 classification, there are two sub-categories of   visas; namely, L-1A – available to managers and executives, and L-1B – available to employees who possess “specialized knowledge.” The March 24, 2015, Memorandum specifically addresses USCIS policy regarding the L-1B classification for workers with specialized knowledge.

As stated in the Memorandum, a potential L-1B beneficiary demonstrates specialized knowledge by possessing either special or advanced knowledge, or both. The terms “special” and “advanced” knowledge are defined as:     

Special knowledge – Knowledge of the employer’s product, service, research, equipment, techniques, management or other interest and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer.

Advanced knowledge – Knowledge or expertise in the organization’s specific processes and procedures that is not commonly found in the industry and is greatly developed or further along in progress, complexity, and understanding than that generally found within the petitioning employer.

The Memorandum further delineates a non-exhaustive list of factors USCIS adjudicators may consider when determining whether prospective L-1B beneficiaries possess specialized knowledge:

  • The beneficiary is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
  • The beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
  • The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
  • The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with that employer.
  • The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
  • The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.

Prior to the March 24, 2015 Memorandum, USCIS explicated policy with respect to L-1B adjudications in a series of four memoranda spanning from 1994 to 2005. Under the prior memoranda, denial rates for L-1B petitions increased in recent years. For example, a March 2015 National Foundation for American Policy brief entitled L-1 Denial Rates Increase Again For High Skill Foreign Nationals, reports denial rates rose from 6% in 2006 to an historic high of 35% in 2014.

While the 2015 Memorandum claims consistency with the previous memoranda, it also purports to supersede and rescind prior policy memoranda and represents “consolidated and authoritative” guidance with respect to specialized knowledge determinations. The Memorandum also positively acknowledges the ability to transfer personnel between multinational companies fosters growth and competitiveness of U.S. businesses in an increasingly global market. As noted earlier, the Memorandum indicates new training will take place under its auspices. Accordingly, there is some cautious optimism that final implementation of the Memorandum may help reverse the rising trend of denials through a more cohesive and uniform explication of policy to both USCIS adjudicators and L-1B petitioners alike.

Some other interrelated factors and considerations addressed by the Memorandum include: how easily the claimed specialized knowledge is imparted to others; a recognition specialized knowledge need not be proprietary or unique to the petitioning organization; a recognition specialized knowledge need not be narrowly held within the petitioning organization; and, a recognition specialized knowledge workers need not occupy managerial positions or have high salaries. Moreover, a demonstration of specialized knowledge does not involve a test of the U.S. labor market. Rather, the relevant threshold inquiry is whether a sufficient number of workers in the particular industry hold the claimed specialized knowledge such that it is generally or commonly held, and thus not specialized.

Off site employment is another subject discussed in the Memorandum. In general, a L-1B beneficiary may be stationed at a third party worksite if the unaffiliated employer does not principally control and supervise the beneficiary’s activities and the purpose of offsite placement is for the beneficiary to apply  specialized knowledge specific to the petitioning organization’s own services or products.

Additionally, the Memorandum reinforces “preponderance of the evidence” within the totality of circumstances as the standard of proof adjudicators must apply in determining whether a beneficiary possesses specialized knowledge. Preponderance of the evidence has been described as “50 percent and a feather” and is less strenuous than the “clear and convincing” and “beyond a reasonable doubt” standards. In other words, even if a USCIS adjudication officer has some doubt about a claim, the requisite burden is met if the weight of the evidence leads to the conclusion the claim of specialized knowledge is “more likely than not” or “probably” true.

We will continue to monitor the status of the USCIS L-1B Policy Memorandum through its effective date, currently set for August 31, 2015. Please feel free to contact the Sharma Law Offices for assistance with L-1 visas or other immigration matters.  We have extensive experience in successfully assisting employers with both L-1A and L-1B petitions.

Advance Parole Does not Trigger Unlawful Presence

Traveling abroad? The Matter of Arrabally and Yerrabelly, 25 I&N Dec.771 (BIA 2012) as an example of the interplay between travel and status.

In the landmark decision Matter of Arrabally and Yerrabelly, the Board of Immigration Appeals (BIA) found a husband (Arrabally) and wife (Yerrabelly) – both of whom resided in the US for over a year after their respective temporary visas expired – could travel outside the US under a grant of “advance parole” without becoming inadmissible by operation of law. While this decision is several years old, well settled, and often cited by immigration lawyers, a brief synopsis of the underlying facts and rationale behind the decision may benefit as an example of issues arising from travel abroad.

Under the facts, Rao Arrabally and Sarala Yerrabelly entered the US as non-immigrants with temporary visas. The couple remained in the US for some years after their respective visas expired. The husband thereafter obtained an approved employment-based immigrant visa petition and the couple accordingly applied to the United States Citizen and Immigration Services (USCIS) for adjustment of status. However, during the pendency of the adjustment of status application, the couple needed to return to India to attend aging parents.

At issue is a federal statute stating a foreign national is barred from admissibility if he or she departs the US and seeks admission within 10 years of the date of such departure if that person was unlawfully present in the US a year or more prior to departure. Here, Arrabally and Yerrabelly were “unlawfully” present in the US more than one year after their respective temporary visas expired. Of concern was whether USCIS would consider the pending adjustment application abandoned as a result of departing the United States. As a result, Arrabally and Yerrabelly applied for (and were granted) “advance parole” which is a travel dispensation typically sought by foreign nationals already inside the US desiring to leave temporarily but fear exclusion as inadmissible upon return.  

Despite the grant of advance parole, upon their return from India, the USCIS denied the couple’s adjustment of status application as ineligible because they departed the US and thereby became inadmissible by strict application of the 10 year bar. The USCIS’s decision to deny the adjustment of status application was later upheld by an immigration judge who further ordered the couple removed from the US as a result.

Fortunately, on appeal, the BIA did not agree with USCIS or the immigration judge.  The BIA rejected the government’s contention that leaving the US under advance parole still effectuates the type of departure that triggers the 10 year bar if unlawfully present for at least a year. In doing so, the BIA reasoned travel under a grant of advance parole is different than a regular departure since the individual is given an assurance he or she will generally be allowed back in the US and permitted to seek the benefit of a previously filed and pending adjustment of status application.

As the Matter of Arrabally and Yerrabelly decision illustrates, foreign travel can give rise to significant and, in some cases, counter intuitive consequences with respect to one’s immigration status in the United States.

Please feel free to contact Sharma Law Offices with questions regarding travel or other immigration matters with respect to your particular set of circumstances.

NewsAlert! Worksite Change Requires Amended H-1B Petition

On April 9, 2015, the Administrative Appeals Office (AAO) released a precedent decision (Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015) in which it concluded a change in the terms and conditions of employment of an H-1B beneficiary, including, change in geographical area not covered in the original LCA constitutes a “material change in the terms and conditions of employment,” requiring the employer to file an amended H-1B petition. 

In this case, the employer in the original H-1B petition attested that it would employ the beneficiary on an in-house project at its facility, with an annual salary of $50,232.  Thereafter, in response to the United States Citizenship Immigration’s (USCIS) site visit, it confirmed that the beneficiary of the petition was no longer working on the project or location mentioned in the original H-1B petition.  With its response, the employer submitted a new LCA that provided two new worksites, located in metropolitan statistical areas different from the worksite listed on the original petition. 

The AAO concluded, a change in place of employment of the beneficiary affected the employees underlying eligibility for H-1B status and therefore was a material change in the terms and conditions of employment, triggering employer’s obligation to “immediately” notify USCIS and file an amended petition.

This precedent decision of AAO will have far reaching consequences on the way in which H-1B petitions are processed.  As in our previous article on this subject, Worksite Change: Is Amended Petition Required?, we continue to highly recommend our clients to file a new LCA and an amended petition prior to the geographic relocation of H-1B beneficiary.