Employers Beware: If You Moved an H-1B Worker Without Advising USCIS, You Have Until August 19, 2015 to Make Amends

06 July 2015 Labor & Employment Law Perspectives Blog

A recent binding decision issued by the Administrative Appeals Office (AAO) has complicated even further the confusing rules governing employer obligations in the H-1B nonimmigrant visa program.

Part of U.S. Citizenship and Immigration Services (USCIS), the AAO conducts administrative review of negative agency decisions on certain types of immigration benefits, including denials and revocations of nonimmigrant visa petitions.

The impact of AAO decisions is usually limited because most of its rulings are not binding on future cases and do not change USCIS policy. But a small number of AAO rulings are designated as precedent decisions that become binding. A recent AAO decision affecting H-1B employers is such a decision.

In the matter, the AAO held that a change in an H-1B employee’s work location that requires the filing of a new labor condition application (LCA) is a material change that requires the filing of an amended petition with USCIS. The case involved an employer who had obtained H-1B status for an employee for work in the Los Angeles-Long Beach-Santa Ana, CA Metropolitan Statistical Area (MSA). After working in the designated MSA for two months, the employer planned to transfer the employee to worksites in other MSAs. The planned worksite change initially came to light in a consular visa application interview, and the approved petition was ultimately revoked by USCIS. The AAO upheld the revocation.

The recent case departs from the business community’s understanding of USCIS requirements with respect to the accepted procedure for documenting H-1B worksite changes, namely that this type of worksite change did not require the filing of an amended petition with USCIS as long as a previously certified LCA covering the employee had been posted at the new worksite.

In addition to placing the obligation to file an amended petition on employers contemplating moving an H-1B employee to a new worksite, the case also has a retroactive aspect. The decision imposes a specific deadline for amending previously approved H-1B petitions where an employee has been moved without notifying USCIS by filing a new petition. While employers do not have to file an amended petition for moves within an MSA, or for short-term moves or moves to a non-worksite location, USCIS has announced in draft guidance that employers have a 90-day period, commencing May 21, 2015, to file amended petitions for worksite changes that took place prior to the issuance of the decision.

Employers who fail to comply now or in the future are cautioned that they will be subject to sanctions, and their H-1B employees will be out-of-status if the guidance is not followed. While the guidance continues to evolve with respect to the recent AAO case, H-1B employers are advised to review their previously approved H-1Bs and file amended petitions where necessary.

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