Filing Amended H-1B Petition When Worksite Changes
As part of the H-1B petition process, the U.S. employer (Petitioner) must
submit a Labor Condition Application (LCA) certified by the Department
of Labor (DOL), attesting that the H-1B worker (Beneficiary) will be paid
the actual wage that is paid to all other individuals with similar experience
and qualifications for the intended employment in question at the place(s)
of employment or the prevailing wage, whichever is higher.
Generally speaking, the Petitioner is required to file an amended H-1B
petition whenever there is a material change in the Beneficiary’s
employment, such as worksite location, job duties, salaries, etc. A question
we often receive is whether the Petitioner must file an amended H-1B petition
for a Beneficiary with an approved H-1B visa to work at the new location.
To answer this question, we need to determine whether a new LCA is required
to be filed for the new worksite. If a new LCA is required, then an amended
H-1B is also required.
A new LCA is required when the geographic area of intended employment of
the new worksite location is different from that on the original LCA.
This is because the prevailing wage for any given job position is dependent
upon the Metropolitan Statistical Area (MSA), which is defined by the
U.S. Office of Management and Budget. For example, the prevailing wage
for a software engineer in San Jose, California will likely be different
from that in Charlotte, North Carolina.
However, if the new worksite is within the same “geographic area
of intended employment” listed on the original LCA, then an employer
does not need to file a new LCA. Instead, the employer needs to post the
existing LCA at the new worksite. The DOL has provided that the “employer
need not obtain a new LCA for another worksite within the geographic area
of intended employment where the employer already has an existing LCA
for that area. While the prevailing wage on the existing LCA applies to
any worksite within the geographic area of intended employment, the notice
to workers must be posted at each individual worksite, and the strike/lockout
prohibition also applies to each individual worksite.” Per 20 CFR
655.715, "area of intended employment" means the "the area
within normal commuting distance of the place (address) of employment
where the H-1B nonimmigrant is or will be employed. "Therefore, strictly
speaking a new LCA is not required and thus an amended H-1B petition is
not required when the new worksite is within “normal commuting distance”
of the worksite stated on the initial H-1B petition. However, there had
been incidents where H-1B petitions were revoked when during a site visit
USCIS could not find the Beneficiary of the petition at the worksite listed
in the initial petition. Despite documentation of LCA posting and/or filing
of an LCA for the Beneficiary’s new worksite, as well as additional
documentation supporting the worksite change, it has been reported that
USCIS has revoked the H-1B petition in more than one incident, stating
that an amended petition must be filed because the new worksite was not
shown on the original petition.
USCIS recently clarified that when a Beneficiary remains employed by the
original Petitioner, a change in worksite to a location in the same MSA
alone is not a material change that necessitates the filing of an amended