Immigration Law Update

On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a decision in the Matter of Simeio Solutions, LLC, overruling prior USCIS practice permitting employers to file a new Labor Condition Application (LCA) when an employee changed work locations. An LCA, certifying the prevailing wage for each work location, must be filed with all H-1b petitions.

The AAO ruled that it is no longer acceptable to file an LCA containing the new work location that is not covered in the original H-1b petition. The employer must file an amended H-1b petition and pay the filing fees, when the employee’s place of employment changes to an area that was not covered by the original petition and LCA.

In this case, which involved a company providing information technology services, the employer represented that the job was an “in-house project” at the employer’s facilities in Long Beach, California, and submitted an LCA for the Long Beach area. Two months after the start date of the employee’s H-1b employment, the employer left the Long Beach facility and the USCIS showed up for a site visit and found that no company existed at the address indicated on the H-1b petition. The employer filed a new LCA indicating that the employee was working out of his home address, in a different area of California, and a client address in New Jersey. Both of these new work locations had a wage of over $9,000 more than the wage indicated on the H-1b petition and certified in the original LCA. The AAO footnotes that the new LCA “had to be submitted to the USCIS as part of an amended or new petition before the beneficiary would be permitted to begin working in those places of employment.”

The AAO ruled that the change in the employee’s places of employment constituted a material change to the terms and conditions of employment as specified in the original H-1b petition. Because the employer failed to file an amended petition with a corresponding LCA, the H-1b petition was revoked.

This decision could have significant impact on companies that move employees to various projects, with new work locations, and previously relied upon the filing of a new LCA to cover these work-sites. Under this AAO ruling, this practice is no longer sufficient and an employer should file an amended H-1b petition for the new work sites.

For more information about H-1b visas and other immigration matters, contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.