Worksite Change: Is Amended H-1B Petition Required?

September 4, 2012

Every now and then our clients ask us if they need to file an amended I-129 petition when the beneficiary of an H-1B petition changes worksite.  The earliest guidance on this topic was provided by the October 23, 2003 Efren Hernandez letter, USCIS Director: Business & Trade Branch, that an amended H-1B petition is not needed when an H-1B employees transfers to a new location not included on the original Form I-129, provided the following conditions are met:

  • A Labor Conditional Application (LCA) has been filed and certified for the new location prior to the employee’s move to the new location;
  • The LCA has been posted in accordance with the Department of Labor (DOL) regulations;
  • Other wage and hour obligations are met; and
  • There are no other material changes to the terms and conditions of employment.

Due to the history of conflicting and confusing policy guidance regarding this issue resulting in both confused enforcement by US Citizenship & Immigration Services (USCIS) and standards that make it difficult for H-1B employers to develop compliance programs and for the attorneys to advice their clients properly, this topic was recently raised by American Immigration Lawyers Association (AILA) with the USCIS at the October 5, 2011 stakeholders meeting and then again at the March 29, 2012 stakeholders meeting.  During both the October 2011 and March 2012 meetings, US CIS stated that it continues to review and develop new guidance on amended H-1B petition as part of its overall policy review for H-1B and may issue additional guidance on this issue in the H-1B section of the USCIS Policy Manual.  However, the California Service Center (CSC) is taking a position that a change of geographic job location is a ‘material’ change thereby necessitating filing an amended H-1B petition. 

Till the time USCIS headquarters issues additional guidance on this issue, we recommend our clients to exercise caution by filing a new LCA and an amended petition prior to the geographic relocation of H-1B beneficiaries. 

 

Posted in H-1B Work Visa