Is an Amended H-1B Petition Required When the Worksite Changes?

The question of whether a new or amended H-1B petition is required when the beneficiary’s worksite changes has been raised with USCIS at the October 5, 2011 stakeholders meeting (AILA Doc. No. 11100570) and again at the March 29, 2012 stakeholders meeting (AILA Doc. No. 12033045). AILA supports the position taken in the October 23, 2003, Efren Hernandez letter, that an amended Form I-129 is not needed for geographic moves so long as the following conditions are met:

1) an LCA has been filed and certified for the new location prior to the employee’s move to the new location;

2) the LCA has been posted in accordance with DOL regulations;

3) other wage and hour obligations are met; and
4) there are no other material changes to the terms and conditions of employment (AILA Doc. No. 03112118).

In addition, 20 CFR §655.735 provides guidance on short-term placement of H-1B nonimmigrants at places of employment within and outside the areas of intended employment listed on the LCA.

At the March 29, 2012 meeting, USCIS stated that it is continuing to review and develop new guidance on amended H-1B petitions as part of its overall policy review and that it may issue additional guidance on this issue in the USCIS Policy Manual. However, the California Service Center (CSC) appears to be taking the position that an amended petition must be filed for a geographic job location change. At a CSC Stakeholder meeting held on August 10, 2011, the CSC stated that 8 CFR §214.2 requires an amended or new petition to reflect material changes in the terms and conditions of an H-1B petition. Generally, it is the position of the CSC that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition. (AILA Doc. No. 11093037).

Practitioners are reporting site audits and revocation of petitions where USCIS could not find the beneficiary of the petition at the worksite listed in the initial petition. Despite documentation of an LCA for the beneficiary’s new worksite, as well as additional documentation supporting the worksite change, the CSC nevertheless has revoked the H-1B petition stating that an amended petition must be filed because the new worksite was not shown on the original petition.

Until USCIS headquarters issues a definitive answer as to whether a new or amended petition is needed for a change in location, MVP Law Group will continue to exercise caution by advising their clients to file a new LCA and amended petition prior to the geographic relocation of the employee.

Source of Information: “AILA InfoNet Doc. No. 12083048 (posted Aug. 30, 2012)”