Our office handles a substantial number of H-1B work visa petitions for a variety of U.S. employers and we often share our direct experiences with the H-1B work visa program. This article is intended to share our experience with H-1B work visa petitions where there is a change of the job location once the H-1B work visa petition has been approved and during its validity.
The Problem – H-1B Workers Changing Job Locations
Many consulting companies who hire H-1B holders place their workers at third-party client sites. It is very common for these H-1B workers to change projects, end clients or simply to relocate to a different client site during their H-1B validity period. In such cases, the question arises, What should be done to ensure that the H-1B employer and employee remain in compliance with the relevant H-1B regulations?
There is fair amount of confusion among H-1B employers and workers with respect to their obligations when there is a change in the work location. Below we discuss what has been currently the recommended approach and also what USCIS has recently announced.
Currently: Change in H-1B Job Location Requires a New LCA
Pursuant to previous USCIS guidance, our office often advises that when there is a change in the job location, but all of the other terms of an H-1B petition remain valid — title, duties, salary — then all the petitioning employer must do is file a new LCA for the new job location(s) and ensure that the proper posting and compliance for each new LCA has been done.
This approach is supported by the Adjudicator’s Field Manual 31.2(e) which states that “[t]he mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.”
The relevant regulations, in 8 CFR 214.2 specify that “[t]he petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition.” (emphasis added). As a result, the question becomes what is “material change.” In light of previous guidance, a change in location only was not considered a material change.
Possible Changes in Interpretation in “Material Change” – California Service Center and Upcoming USCIS Guidance
In recent discussions with the California Service Center, some of which is prompted by a number of “Notice of Intent to Revoke” notices, it becomes apparent that the California Service Center is starting to consider a change in the job location a “material change” and, as a result, requiring an H-1B amendment to be filed. According to the California Service Center, as of August 10, 2011, “it is the position of [California Service Center] Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”
It is worth noting that no such guidance has been issued by the other service center processing H-1B petitions – the Vermont Service Center. As a result, an apparent conflict arises between both Service Centers — because the Vermont Service Center has not provided any guidance on the issue, it may be inferred that H-1B petitions filed with the Vermont Service Center do not require amendment when there is change in the job location.
We are aware that USCIS is working on official guidance on this topic which would, hopefully, provide clear guidance applicable to both service centers. Unfortunately, there is no known or anticipated release date. In the meantime, in abundance of caution, we are starting to recommend that H-1B amendment petitions be filed when there is a change of job location, at a minimum, for petitions with the California Service Center, but also for petitions filed with the Vermont Service Center. If you are not sure whether a petition has been filed with the Vermont or California Service Centers, please see this guide to service centers and receipt numbers.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.