All H-1B workers and their U.S employers need to know of a major policy shift in effect: changes in worksite are now deemed to be a change in material terms of the offered employment, and mandate filing of an amended petition with USCIS whenever a new LCA is required. This policy hits consultancies and workers placed at third-party client sites the hardest, but ultimately it affects every H-1B worker and their employers.
On April 9, 2015, the USCIS Administrative Appeals Office handed down a decision in Matter of Simeio Solutions, opining that a change in the place of employment is a material change. For H-1B workers relocated to new worksites prior to the date of the decision on April 9, USCIS has stated that it does not plan to challenge these with Requests for Evidence, or Notices of Intent to Deny or Revoke.
In preliminary guidance, USCIS gave employers who had moved H-1B workers after April 9, until August 19 to file amended petitions with USCIS, but then on July 21, 2015, the Service released a policy memorandum extending the filing deadline by five months. Now, any US employer that has moved H-1B workers to new worksite addresses after the decision on April 9, 2015, and before August 19, 2015, has until January 16, 2016 to file amended H-1B petitions for those workers.
For any H-1B workers relocated to new worksites outside the original city and state on or after August 19, 2015, the employer must file an amended petition before the move takes place. Worksite address changes within the same “geographic area” (i.e., Metropolitan Statistical Area) still require re-posting the original LCA at the new worksite address before the H-1B employee starts to work there.
However, even employers who relocated or reassigned H-1B workers before the Simeio decision must take note that they are not home free. Even address changes within the original city and state may not be exempt from scrutiny for good faith. The Service retains discretion to challenge relocations with Notices of Intent to Revoke in situations involving a worksite address change that took place prior to April 9, 2015. For such discretionary challenges, USCIS will probably look to whether the approved H-1B petition involved placement of the worker at undisclosed worksites, regardless of whether those sites belong to third-party clients, and to the employer’s initial compliance and avoidance of misrepresentation, i.e., whether the H-1B worker ever actually worked at the address(es) listed in the initial LCA and approved H-1B petition.
The Simeio case involved an IT consultancy where the employer’s assignment of the H-1B employee to client sites was not disclosed in the LCA or the petition. The employer claimed to offer full-time work only onsite at their own premises, but in fact assigned the worker immediately to work at a client site, then in addition, two months after the I-129 petition was filed, the employer’s office at the address listed in the LCA and I-129 petition shut down and moved to a residential address. The H-1B worker was never employed at the address listed in the LCA and H-1B petition.
For over two decades, an H-1B approval explicitly covered all possible work locations within a given Metropolitan Statistical Area, which is the specific meaning of the “geographic location” of the worksite under the labor regulations governing the H-1B program. The Labor Condition Application listed worksites only by city and state, which was sufficient to identify the applicable prevailing wage. The LCA online system and an older version of the form asking for only city and state as worksite location remained in use until June 30, 2009, in order to give users time to get used to the new Form ETA 9035 and to set up user accounts on the Department of Labor’s iCert Portal. After June 30, 2009, use of the new ETA 9035 Labor Condition Application form was mandatory, and the first version of Form ETA 9035 identified up to three worksites by specific street addresses.
The threat of USCIS re-characterizing an address change as a material term of employment, thus requiring amended petitions for any changes in the worksite or employer address, has loomed on the horizon ever since the Labor Condition Application form was revised to identify multiple worksites by street address. The Department of Labor’s H1B FAQs published on 2/17/2011 clarified that a worker could start work at a new place of employment as defined by 20 CFR 655.715 and not contemplated at the time of initial filing, based on a posted notice of wages and work conditions by the employer at the new worksite, and filing of a new LCA. There have been quite a few Service memoranda over the years clarifying when an amended H-1B petition was and was not required, but the tacit implications of the controlling labor regulation, and the possibility of a narrowing interpretation by USCIS, changed dramatically once the LCA form specified street addresses for the intended work location.
USCIS has been through previous spasms of trying to tie H-1B workers definitively to worksites, but none of it stuck until 2015. Now, reassignment of H-1B professionals to any new or additional worksites not listed in the original LCA and petition, up to and including a move of the company’s main headquarters to a new office in the next town down the road, may be deemed a material change of employment terms. A new work address in a new city entails filing an amended I-129 petition with USCIS. This particular turkey has finally come home to roost.
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