New AAO Decision Impacts Changes in Worksite Location for H-1B Workers

On April 9, 2015, the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) issued a decision directly impacting many employers who currently employ H-1B nonimmigrant workers. The decision provides that a change to an H-1B worker’s authorized place of employment to a geographical area not covered by the original labor condition application (LCA) is a material change requiring the employer to file an amended or new H-1B petition, including a corresponding LCA certified by the Department of Labor (DOL). This decision clarifies and supersedes prior USCIS guidance on this issue, which left ambiguous the materiality of a worksite change to a different geographic area. Under the new decision, an employer anticipating imminent changes in a worksite location to a different geographic area for an H-1B worker must notify USCIS prior to the change through the filing of an H-1B petition.

Please note, changes of worksite within the same geographic Metropolitan Statistical Area (MSA) will likely continue to be governed by DOL guidance that an LCA is valid within an entire MSA, so long as prior notice is provided at the new worksite within the same MSA. In other words, a change of worksite within the same geographic MSA may not require a new H-1B petition, so long as notice is given to workers at the new worksite.

It is uncertain how soon USCIS may begin to adhere to the newly-issued decision in its daily operations. Gibney will continue to monitor this new development, and will work with our clients to understand the implications of this new decision and to develop effective strategies to comply with the policy set forth.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.