Is an Amended H-1B Visa Petition Needed If Job Location Changes?

Explore:  Documentation H-1B Visas

The H-1B visa is available for temporary workers who are employed by U.S. companies in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. Like all employees, H-1B visa employees are sometimes transferred to another job location within the same company. Until recently, it has been unclear whether changes in job location required an amended H-1B visa petition or not.

Under USCIS regulations, an amended H-1B petition is required if there is a “material change”in employment terms, but, until now, there has been inconsistent treatment by USCIS regarding changes in job location. Previous USCIS guidance has suggested that a location change, without any other alterations to the employment relationship, does not constitute a “material change” and, thus, an amended H-1B petition is not necessary.  Nonetheless, contrary to its own guidance, the USCIS has required an amended H-1B petition if the place of employment changes, which has created challenges – including additional filing fees – for employers who move offices within the same Metropolitan Statistical Area or place employees at another job location not anticipated at the time of filing of H-1B petition.

Fortunately, the USCIS recently clarified that a location change within the same Metropolitan Statistical Area does not amount to a “material change” and, accordingly, an amended H-1B petition is not required.

The clarification came on October 23, 2013, when the USCIS met with the American Immigration Lawyers Association and was asked to “confirm that a move within the same area of intended employment is not a ‘material change’ that requires the filing of an amended H-1B petition [and to] also confirm that field auditors have been instructed not to treat changes of location within the same area of intended employment, without other factors, as ‘material’ for purposes of requiring the filing of an amended petition or petition extension.”

The USCIS responded: “USCIS assumes that the ‘move’ being referenced in this question is a move in the place of employment and not the place of residence of the employee. Generally, 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.”

It still remains unclear whether changes in job locations outside the normal commuting distance will be considered a “material change” or not.

Topics:  Documentation, H-1B, Visas

Published In: Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Shapiro | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »