Update from USCIS: When amended H-1B petition is not required

USCIS confirmed on October 23, 2013 that change of employment location within the same MSA does not require an amended H-1B petition. This is an important clarification from USCIS’ position on the issue was unclear.

Under USCIS regulations, amended H-1B petition is required if there is a material change in employment terms. However, there has been inconsistency in USCIS’ treatment of the changes in job location. While past USCIS guidance (Efren Hernandez letter, October 23, 2003) suggested that location changes, without any other changes in the employment relationship, do not constitute “material changes,” as a practical matter, USCIS has often denied H-1B petitions when during FDNS inspections the beneficiary could not be found at the job location that was provided to USCIS with the H-1B petition. USCIS, contrary to its own guidance, insisted that an amended H-1B had to be filed whenever the place of employment changes. This presented significant challenges to many employers who move offices within the same Metropolitan Statistical Area or who place employees at another job location not anticipated at the time of filing of H-1B petition. For employers who have a significant H-1B workforce that means thousands of dollars in USCIS filing fees.

The policies of USCIS and DOL seemed contradictory when it came to changes in job locations within the normal commuting distance of the place of employment. Under the DOL’s regulations, no new LCA is required to be filed if the employee moves within the “area of intended employment,” which is the area within a normal commuting distance of the place of employment. The normal commuting distance is not defined and has to be analyzed on a case by case basis. Normally, moves within the same Metropolitan Statistical Area (MSA) are considered to be within the normal commuting distance. Thus, any moves in job location within the same MSA generally do not require filing of a new LCA.

At the same time, even when a new LCA was not required, USCIS still insisted on filing an amended H-1B petitions which was highly detrimental to many H-1B employers.

Under the most recent USCIS guidance issued on October 23, 2013, USCIS acknowledged that “[g]enerally, in a case where a beneficiary remains employed by the original petitioner, a change in the “place of employment”, as used in 20 CFR 655.715, of a beneficiary to a location in the same Metropolitan Statistical Area (MSA) listed on the controlling Labor Condition Application (LCA) certified to the U.S. Department of Homeland Security with respect to that beneficiary alone is not a material change in the terms and conditions of employment and therefore would not require the filing of an amended H-1B petition.”
Despite this useful clarification, it remains unclear whether USCIS considers change in job locations outside of the normal commuting distance to be “a material change” and thus requiring an amended H-1B petition. We will be monitoring USCIS’ guidance and will update our readers with additional information.