H-1B Amendment for Worksite Changes

 

In a July 2014 decision by the Administrative Appeals Office, AAO explicitly overruled the October 2003 letter from Efren Hernandez III, Director, Business and Trade Branch, USCIS.  The Hernandez letter had stood for the position that an H-1B amendment petition is not required for a job location change provided a Labor Condition Application (LCA) is posted and certified for the new work site prior to the work site change.

 

The recent AAO decision states “having materially changed the beneficiary’s authorized place of employment to geographical areas not covered by the original LCA, the petitioner was required to immediately notify USCIS and file an amended or new H-1B petition….”

 

The AAO further states that a new LCA certified for the new job location “could only be submitted to USCIS as part of an amended or new petition before the beneficiary would be permitted to begin working in those places of employment.”

 

Although this recent AAO decision is a non-precedent decision, explicit rejection and reversal of the Hernandez letter (which Immigration Law Group supported), means ILG attorneys must now advise H-1B employers to file H-1B amendment petitions before an H-1B employee materially changes worksite, even if there is no change to the beneficiary’s job title, responsibility or salary.