In a decision issued on April 9, 2015, the Administrative Appeals Office (AAO), which conducts administrative review of certain categories of appeals to denials of immigration benefits, to ensure that immigration law and policy is interpreted accurately and consistently, published a binding ruling in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542. This decision supports the need to file an amended H-1B petition for any material change to the H-1B employee’s worksite location. The AAO declared that a change in the beneficiary’s worksite location to a geographical location not covered by the original Labor Condition Application (LCA) constitutes a material change for purposes of the immigration regulations, requiring a new LCA that reflects these changes. Furthermore, where 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 certified by the Department of Labor (DOL), with both documents indicating the relevant change.
This means that any time an H-1B beneficiary changes his or her worksite location, it is critically important that the employer reviews the previously submitted petition and LCA to ensure that the employee remains in compliance. A new employment location is covered by an existing LCA if it is within the same Metropolitan Statistical Area (“MSA”) or area of intended employment identified on the existing LCA. Because the prevailing wage requirements are tied to the area of employment, if the employee’s new location is out of the geographical location that is covered by the original LCA, this is considered a material change in the terms and conditions of employment that might affect the employee’s eligibility.
In light of this decision, employers should be aware of the possible impact of changes in the terms and conditions of employment, and consult with immigration counsel to determine if any material changes in work locations have occurred since approval of the H-1B petition that may require the filing of a new or amended H-1B petition.