To File or Not to File: Is an Amended H-1B Petition Required When the Worksite Changes?
September 10th, 2012 by Andrew M. Wilson
Immigration law has become more art than science, more speculation than certainty. In many scenarios there is no “right” answer, no simple yes or no. Many times there are only conservative and aggressive approaches to a certain case. That lack of certainty makes attorneys uncomfortable, and employers who want to be compliant with the law even more uncomfortable.
One example is whether an amended H-1B petition is required when the employee’s worksite changes. This is a common scenario, so there should be a consistent and clear answer. There should be clear guidance from CIS. There is not.
There is guidance from legacy INS dating back to 2003 reading that an amended 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
CIS, however, does not always follow previous legacy INS guidance. The problem here is that CIS has not confirmed whether they agree with the legacy INS guidance and they have not provided any guidance of their own on the issue.
The question of whether a new or amended H-1B petition is required when the beneficiary’s worksite changes has been raised with CIS twice over the past two years. CIS has stated that it is reviewing this issue and will develop new guidance on amended H-1B petitions as part of its overall policy review.
If this lack of clarity was not confusing enough, a recent Practice Pointer from AILA on the issue points out that the California Service Center (CSC) appears to be taking the position that an amended petition must be filed for a geographic job location change. (See AILA Doc. No. 12083048) 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. (See AILA Doc. No. 11093037).
In addition, the AILA Practice Pointer highlights that FDNS site visits are also creating problems. There are reports of site audits and revocations of petitions where CIS 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.
So what is an employer to do? Again there does not seem to be a “right” answer, but there is a conservative approach. Until there is clear guidance from CIS on this issue, the conservative and prudent approach is to file the amended H-1B petition.
Please contact me anytime with any questions about this issue.
