USCIS regulations require that whenever there is a material change in an H-1B beneficiarys position, the petitioner must file an amended petition to reflect the change. The term material is not defined, however, so the circumstances triggering the need for an amended petition are not clear.
USCIS regulations require that whenever there is a “material change” in an H-1B beneficiary's position, the petitioner must file an amended petition to reflect the change. The term “material” is not defined, however, so the circumstances triggering the need for an amended petition are not clear.
In 2003, an immigration attorney received a legal opinion from the Director of the Business and Trade Branch of USCIS, Efren Hernandez, stating that a “mere change in location,” while requiring a new LCA, does not require the filing of an amended petition. Mr. Hernandez' letter is not a legally binding opinion, but did reflect the understanding of USCIS at that time.
Meanwhile, in the late aughts, USCIS began to take a very hard stance on H-1B petitions filed for employees of IT consulting firms. USCIS began investigating the practices of these employers, and became increasingly suspicious of what was perceived as “speculative employment,” since those firms, while they may have a continual need for temporary workers, could not verify long in advance the details of the end client at which the beneficiary would be placed upon arrival in the United States. This scrutiny led to a USCIS Memorandum on third party placements in 2010, setting forth stringent criteria by which USCIS could verify that a bona fide job offer exists for an H-1B beneficiary who will work at a third party worksite.
After the Third Party Placement Memo, it became unclear whether H-1B petitioners who placed their employees at third party worksites were required to file an amended petition every time one of their H-1B workers changed assignments. On the one hand, these changes could be viewed as a “mere change in location,” which is not a material change, and thus not requiring an amended petition. But on the other hand, the new Memo seemed to indicate that the petitioner's right to control the beneficiary's work came into question afresh with each change in assignment, and that a change in worksite/assignment was therefore a material change requiring an amended petition. USCIS did not articulate any clear guidance on this issue, though there were cases reported in which USCIS sent a site visit investigator to the address listed on the petition, found the beneficiary was no longer working there, and proceeded to revoke the petition as a result, even though a new LCA had been properly filed for the change in location.
In a new precedent decision released April 9, 2015, the USCIS Administrative Appeals Office (“AAO”) gave a clear, if disappointing, answer to this question. In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), , the AAO held that,
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 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A)(2014).
It is now very clear that any time an H-1B beneficiary's worksite changes such that a new LCA must be filed, there is a material change requiring an amended petition. Failure to file the petition will result in petition revocation or denial of a future extension or change of status request.
It should be noted that while this case arose in the context of an IT consulting situation, the holding is not limited to the IT consulting context. The holding applies to all H-1B petitioners equally.
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