Moving H-1b Employees to a New Location

Moving H-1b Employees to a New Location On October 7, 2011, U.S. Citizenship & Immigration Services ( USCIS ) released new instructions to accompany Form I-129, Petition for Nonimmigrant Worker. The I-129 form is used when an employer petitions USCIS to sponsor an H-1b worker. The new instructions require that the petitioning employer state the basis upon which the H-1b classification is sought. An employer can respond in one of two ways: (1) the classification is based on a nonmaterial change in a previously approved employment, or (2) the classification is accompanied by an amended petition that will notify USCIS of a material change to the original application. While there are a number of changes that can affect an employee s status, this article will only address situations where an organization moves an H-1b employee from one location to another. It will begin by providing an overview of the government entities that are involved in determining whether to allow an organization to hire a temporary foreign worker and whether to grant that individual H-1b status. Next, the article will provide a step-by-step guide that should be followed when an H-1b employee moves from one job site to another. Finally, it reviews the different positions that the Department of Labor ( DOL ), USCIS, and the Department of State ( DOS ) take in regards to whether or not a change in job location is a material change that would require an amended petition. The article concludes that employers should ensure that they are filing new labor condition applications ( LCA ) when employees who hold H-1b status move from one job location to another. In regards to whether or not an amended petition should be filed, employers should carefully weigh the benefits and risks in filing an amended petition when a change in job location occurs to determine an appropriate course of action. However, if the employee is planning on attending a visa stamping appointment at a U.S. Consulate, employers should file an amended petition because the DOS takes the position that a change in job location is a material change that would require an amended petition. A. Government organizations that are involved in the H-1b process There are three government organizations that play a role in the H-1b application process. The DOL considers the LCA. 1 The LCA serves two purposes: (1) ensuring that U.S. workers are not displaced by foreign workers, and (2) providing standards that protect the foreign worker from being exploited. To achieve these objectives, the LCA requires the employer to attest to several different conditions which are reviewed by the DOL. 2 If the DOL approves of these provisions, it will certify the LCA. The certified LCA is an attestation made by the DOL that an employer will preserve certain work conditions and pay specific wage rates for 1 See Immigration & Nationality Act 212(n) (1998). 2 See Id. Hammond Law Group, LLC 1

any worksite within the area of employment. 3 After the LCA is certified by the DOL, the petitioning employer must submit the certified LCA and the Form I-129, Petition for Nonimmigrant Worker, to USCIS. 4 USCIS reviews the application to determine if the job can be considered a specialty occupation, if the qualifications of the worker meet the requirements of the specialty position being sponsored, and whether an employer employee relationship will be maintained between the petitioning employer and the sponsored employee. 5 If USCIS approves the case, then the petition will follow one of two paths. If the beneficiary is already in the United States, USCIS will determine whether the beneficiary can change status within the United States. 6 If the beneficiary is abroad, the petition will be forwarded to the DOS. The DOS will review the application and determine whether to grant the beneficiary a visa to enter the United States to work for the petitioning employer. 7 B. Step-by-step guide on moving H-1b employees After an employer has decided to move an employee who holds H-1b status to a new location, it should follow these steps to ensure that it does not run the risk of incurring penalties or causing its H-1b employee to lose status. 1. The employer should consider the nature of the change in job location. As discussed earlier, a LCA covers the area of employment that the employee will be working at. 8 In most situations, an employee who is moving to a new job location will be changing to a new area of employment. However, there are two different scenarios that could result in a determination that an employee is not working in a new area of employment. First, the employer should determine whether the job site is in the same metropolitan statistical area as the location for which the LCA was certified. If it is, then it is in the same area of employment as the LCA. In such situations, the employer must only post notice at the new job site in two different places before the employee starts work, and keep the posting notices in the public access file. 9 Second, the employer should determine whether the placement at a new location is short-term. An employer can place an H-1b employee at any worksite that is not covered by the LCA for a total of 30 work days in a one year period. 10 If a placement is classified as short-term, the employer is not required to file a new LCA. 11 3 See 20 C.F.R. 655.715(4). An area of employment is defined as the area within normal commuting distance of the places (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. See Id. 4 See 8 C.F.R. 214.2(h)(2). 5 See Immigration & Nationality Act 101(a)(15)(H)(i)(B). 6 See Immigration & Nationality Act 248 (1952). 7 See Id. at 214(c). 8 See 20 C.F.R. 655.715(4). 9 See 20 C.F.R. 655.734(a)(1)(ii) and Letter from Efran Hernandez III, Director, Business and Trade Branch, U.S. Department of Homeland Security, to Lynn Shotwell, American Council on International Personnel (Oct. 23, 2003). 10 See 20 C.F.R. 655.735(c). 11 See 20 C.F.R. 655.735. Hammond Law Group, LLC 2

2. Next, the employer should review the new job location that the employee will be working at. If the employer determines that the change in job site is not in the same area of employment and is not a short-term placement, it will have to review the new job location. A certified LCA states a prevailing wage that sets the wage for a particular occupation in a metropolitan statistical area. The employer is required to pay this wage or the equivalent of what it is paying its U.S. workers at the job site, whichever is higher. The employer should determine what the prevailing wage is at the new job location and how much it is paying other U.S. workers at this site. Depending on the location that an employee is being moved to, the wage might be substantially higher than what the employee is being currently paid. In such a situation, the employer should consider whether it can increase the H-1b employee s billing rates to make up the difference in wages between the two work locations. 3. After reviewing the job location and making any necessary billing changes, the employer should file a new LCA. If an employer determines that the new job location constitutes a new area of employment, then a new LCA will have to be filed and posted. This LCA should reflect the new job location and its corresponding wage. The LCA must be filed and all posting notices met before the employee begins working at the new location. By doing so, the employer will satisfy the requirements of USCIS and the DOL. C. The positions taken by the DOL, USCIS, and DOS in regards to whether a change in job location is a material change While it is important to understand the different role that each of the government agencies play in the H-1b application process and the overall steps that should be followed when an employee changes job location, it is also critical to recognize that each government entity has its own requirements that must be followed when a H-1b employee moves from one job location to another. An organization that hopes to move an H-1b employee must follow each requirement to ensure that it does not receive fines and to preserve its employees ability to enter or re-enter the United States. The DOL requires that an employer obtain and post a new LCA when an employee is moving from one job site to another. There is no further requirement specified by the DOL. Consequently, as long as employers ensure that they are obtaining and posting a new LCA whenever an employee changes job locations, they will meet the DOL s specifications. Historically, USCIS memoranda stated that a change in job location was not a material change in the job. 12 Consequently, USCIS did not require an amended petition. In addition, the 12 See Letter from Efran Hernandez III, Director, Business and Trade Branch, U.S. Department of Homeland Security, to Lynn Shotwell, American Council on International Personnel (Oct. 23, 2003). Hammond Law Group, LLC 3

language included in the most recent version of the Form I-129, Petition for a Nonimmigrant Worker on the H Classification Supplement requires employers to certify that they will obtain and post a LCA for that site prior to reassignment. These statement do not seem to require that employers file an amended petition when one of their employees changes job locations. Since this is the latest available information, we suggest that employers can fulfill the DOL and USCIS s requirements by simply obtaining and posting a LCA at the new worksite location. In such a case, no amended petition is required because USCIS does not seem to be taking the position in its instructions on the Form I-129 that a change in job location is a material change. The benefit of only obtaining and posting a new LCA at the new work location is that the employer can avoid undertaking the process of filing and receiving an approved amended H-1b petition from USCIS. Given the difficulty that many employers are facing as a result of USCIS s current focus on whether employers are maintaining the right to control their employees and whether positions qualify as a specialty occupation, employers may want to avoid filing an amended petition which could open the sponsored position to inquiry by USCIS on a variety of issues. By only filing a new LCA when a change in location occurs, employers will also avoid having to pay attorney fees and filing fees to USCIS for the amended petition. While the filing fee for an amended petition that does not request a further extension of stay is minimal at $325, this amount can add up if an employer routinely moves its employees from one site to another. While these benefits are critically important as employers try to make their businesses as cost-efficient as possible while still following the federal regulations, there are some risks involved in only obtaining and posting a new LCA when a change in job location occurs. Specifically, site visits are becoming increasingly common. The site investigator will usually contact the employer if it is unable to locate the sponsored employee at the location specified in the petition and will generally be satisfied with a copy of the LCA that was filed listing the new work location. Occasionally though, this scenario will result in USCIS issuing a notice of intent to revoke on the basis that the sponsored employee is not working at the location specified in the underlying petition. If this occurs, the employer will have to demonstrate to USCIS that it fulfilled its obligations under the federal law and USCIS guidance by filing a new LCA listing the new work location. If USCIS is not satisfied with this argument, it can decide to revoke the employee s H-1b because he or she is not working at the location for which the LCA that was submitted as part of the underlying petition was certified. If this were to occur, the employee would be forced to leave the United States while the employer filed a new H-1b petition that would allow the employee to re-enter the United States. Finally, the DOS requires that an amended petition be filed each time that an H-1b employee moves to a different job location. The DOS takes the position that a change in job location is a material change and an amended petition must be filed to reflect this change. Employers that choose to only obtain and post new LCA s when an employee moves locations should carefully monitor their employees travel plans. If an employee plans to go abroad and attend a visa stamping appointment at a U.S. Consulate, the employer will need to file an amended petition listing the new work location before the employee goes abroad. If the employee attends a visa stamping appointment when he is no longer working at the location that was listed in the underlying petition, the Consulate will likely deny the visa stamping Hammond Law Group, LLC 4

request. If this occurs, the employer will be forced to file an amended petition while the employee remains abroad. Once approved, the employee will have to attend a second visa stamping appointment with his new amended petition. To avoid having to undergo this stressful sequence of events, employers should ensure that they are filing amended petitions for all employees who plan to attend visa stamping appointments and who have moved to a new work location. D. Conclusion Unfortunately, USCIS s current instructions on the Form I-129, Petitioner for a Nonimmigrant Worker, do not clearly specify whether or not a change in job location is considered a material change by USCIS that would require an amended petition. However, given the historical position that USCIS has taken on this issue and its statements on the Form I- 129 that employers must obtain and post a new LCA when a change in job location occurs, we are comfortable advising clients that they may choose to only obtain and post a new LCA when a change in job location occurs as long as the employer will plan on filing an amended petition if an employee plans to go abroad for visa stamping at a U.S. Consulate. However, as outlined above, there are some risks in taking this position. Consequently, every employer should carefully weigh whether the benefits of avoiding filing an amended petition outweigh the risks. The Hammond Law Group is always happy to discuss which position might be appropriate for an individual employer. Hammond Law Group, LLC 5