First, we need to turn our attention to an Administrative Appeals Office decision dated June 29, 2013 from a Vermont Service Center denial.
The AAO decision reiterates what the California Service Center stated during an AILA-CSC Liaison Meeting:
AILA Info Net Doc. No. 11093037 (Posted 9/30/11):
Q. Stakeholders report receiving Notices of Intent to Revoke (NOIR) on approved H-1B petitions for beneficiaries who have moved from the location of employment reflected in the H-1B petition to a new location where a valid LCA was filed with and certified by DOL. It appears that the CSC requires an amended petition whenever there is a change in a beneficiary’s work location. Specifically, the NOIRs states:
the beneficiary was not working at [the address indicated on the petition], as described in the initial filing of the petition. As mentioned above, when a petitioner signs the petition, he or she is certifying that the petition and all evidence submitted with it, either at the time of filing or thereafter, is true and correct. The USCIS records do not indicate that the petitioner filed an amendment of the beneficiary’s place of employment.
The Adjudicator’s Field Manual at 31.2(e) states, “The mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial Petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.” At the last Stakeholder Engagement Meeting on April 27, 2011, CSC advised that the issue of what constitutes a “material change” to necessitate an amended petition under these circumstances is being reviewed by USCIS. We respectfully request that the CSC provide an update and its current interpretation of the definition of “material change,” as these NOIRs appear in opposition to longstanding USCIS policy and AFM instruction.
A. USCIS regulations at 8 CFR 214.2 require an amended or new petition to reflect material changes in the terms and conditions of an H-1B petition. USCIS is currently conducting a policy review of all H-1B guidance, including the material change issue, and will issue new guidance. Generally, it is the position of CSC Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.
However, in September last year, AILA went back to USCIS HQ and posed the same question differently. The question and response are reproduced below (AILA Info Net Doc. No. 13102461 Posted: 10/24/2013):
Q 13. Under the Department of Labor regulations, the “area of intended employment” means the area within a normal commuting distance of the place of employment.6 No new LCA is required if the employee moves within the same “area of intended employment.” Please 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. Please 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.
A: 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.
So, what is the Petitioner required to do – file, or not file an amended petition when the Beneficiary is no longer at the site indicated on the I-129 (and corresponding LCA)?
The issue that appears missing from the AILA questions is simply whether the Administrative Site Visit and Verification Program (ASVVP) created and implemented by the Fraud Detection and National Security (FDNS) Directorate, now necessitates amended petitions whenever an H-1B Beneficiary moves from the location specified on the LCA/I-129 ? This would be irrespective of whether or not the location change is in the same Metropolitan Statistical Area (MSA).
Let’s not forget that an ASVVP visit may be triggered by a Consular inquiry as well.
Petitioners must realize that the Service could also revoke and then ask questions. In which case, the employee is left without any recourse, but to stop working immediately. This would lead to disruption in employment and the potential for Beneficiary to be rendered out of status.
Therefore, treating amendments as part of compliance may be the way forward, or as one of my Clients put it – the cost of doing business with the USCIS!