Rami Fakhoury on IT Immigration
, 04-16-2015 at 02:29 PM (20414 Views)
In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); AILA Doc. # 15040969 (posted on 04/09/2015): the AAO rendered a decision that may have a tone of finality in the context of when to file an amended H-1B petition. Or suffer the consequences – revocation of the originally approved petition.
The AAO’s ratio decidendi:
- A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (LCA) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
- When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.
An H-1B petition requires an underlying approved Labor Condition Application (LCA). The LCA specifies terms and conditions that an employer must comply with to protect US workers and to enable an employee to maintain valid status. Inter alia, if a job location changes during an individual’s employment from the original “area of intended employment” and if that new job location is not listed as an “area of intended employment” in the originally approved LCA, a new LCA is required to be filed and approved by the US Department of Labor (DOL) before an individual can commence working at the new job location.
An “area of intended employment” is defined at 20 CFR, §655.17.
“Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA).
There has been much debate – between attorneys and informed employers alike - as to whether a mere change of job location – whether within or beyond the originally approved “area of intended employment” mandates the filing and approval of an amended H-1B petition with the USCIS.
It is important to acknowledge the guidance most often followed till date –till the rendering of this Simeio decision – the 2003 Hernandez letter to Lynn Shotwell, AILA Document # 03112118. (Posted on 11/21/03). This was a very useful and oft used guidance re: filing an amended petition pursuant to a new LCA. It is equally significant to note how this correspondence ended:
“Please be aware that the USCIS will explore the issue of the need to file amended H-IB petitions in the context of regulations implementing the American Competitiveness in the Twenty-First Century Act (AC2I), and related legislation. Our position on this issue, therefore, is subject to change” (emphasis added).
Query: If an employer procures an approved LCA for the new location, does that require the employer to file an amended petition? What, if any are the possible exceptions to that requirement?
Conservative wisdom suggests that if a new LCA is required, an amended petition is required. With audits and investigations on the rise, many have decided to pursue this less confrontational route and comply as best possible with the conservative thought process. Quite to the contrary, and in the absence of definitive guidance, many employers have chosen to follow a different path, and file the new LCA but not follow up with the expense and uncertainty (of an approval) of an amended petition. Of course, any employer who does not even file a new LCA does so at its own peril.
Some lessons and take-aways from the Simeio Solutions decision:
- The LCA process is intended to protect US workers by “eliminating economic incentives or advantages in hiring temporary foreign workers”, page 545 of the decision.
- An H-1B employer must expect a site visit at the location stated on the LCA and the Form I-129 petition. The days of “if” are long gone, and an employer should only deal with a “when” an audit will be conducted.
- If there is a location change, and the USCIS is not informed of such change, the USCIS would not be able to conduct the site visit. That could jeopardize an approved H-1B petition, and the individual’s status.
- If the changed location is different from the one stated on the originally approved LCA and Form I-129 petition, at the least a new LCA is required, followed by the required “posting” at the new location.
- If the location change is outside the MSA that covers the location stated in the approved LCA and Form I-129 petition, it is more than likely that there will be at least a salary change (a discussion of “prevailing wage and actual wage” is beyond the scope of this article). If there is a salary change this may affect eligibility for H-1B status. It is also more than likely that this will entail a “material change” in the terms and conditions of employment. This will require a new LCA from the DOL, AND an amended petition that corresponds with the new LCA must be filed with and approved by the USCIS.
- An employer must “immediately” notify the USCIS of any changes in the terms and conditions of employment. The normal process for this is the filing of an amended petition.
- The AAO tries to harmonize its decision with earlier USCIS communications on page 547, footnote 7: “This interpretation of the regulations clarifies, but does not depart from, the agency’s past policy pronouncements …. To the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded”. There goes the 2003 Hernandez letter referenced above!
- On page 549 of this decision, the AAO states, “By failing to file an amended petition with a new LCA, …. a petitioner may impede efforts to verify wages and working conditions. Full compliance with the LCA and H-1B petition process, including adhering to the proper sequence of submissions to DOL and USCIS, is critical to the United States worker protection scheme established in the Act and necessary for H-1B visa petition approval”.
Some issues that the AAO leaves open for another day, a more thoughtful debate, and a later decision:
1.Does an employer need to file a new LCA where only the location changes but remains within the same MSA – example: a change from one building to another, or a change within a couple of blocks in the same town, etc.?
The USCIS would not be able to undertake successful site visit in either case! Is there any material change in the terms and conditions of employment in such a location change only?
2. The AAO acknowledges on page 547, footnote 7: “We need not decide here whether, …. there may be material changes in terms and conditions of employment that do not affect the alien’s eligibility for H-1B status but nonetheless require the filing of an amended or new petition”.
3. The AAO also did not address nor was it asked to consider the location change as a “short term placement” or “non-worksite location” or “assignment”. Page 547, footnote 8.
Quite apart from the open questions, one would be best served by paying heed to the AAO’s current thinking. If you don’t, there is the clear possibility that at the very least the H-1B petition may be revoked. If that transpires, the individual beneficiary of that petition may fall out of status or worse yet, be stuck outside the US and not get the desired H-1B visa; and the employer will have lost a valuable resource.
Moral of the decision: When in doubt, file an amended petition.