U.S. Department of Homeland Security
Citizenship and Immigration Services
425 I Street NW
ULLICO, 3rd Floor
Washington, D.C. 20536
October 23, 2003
Ms. Lynn Shotwell
American Council on International Personnel, Inc.
515 Madison Avenue, 6th Floor
New York, NY 10022
Dear Ms. Shotwell:
We regret the delay in responding to your July 12 letter regarding the
requirements for filing an amended petition when an H-1B employee transfers
to a new location not included on the original Form I-129, but which is
covered by a labor condition application (LCA) that was in place prior
to the employer’s move.
Based on the information you provided, an amended Form I-129 petition would
not be required simply on the basis of the geographic move. As long as
the LCA has been filed and certified for the new employment location,
the appropriate worksite posting has taken place, and other wage and hour
obligations are met, no amended petition would be required regardless
of when the LCA was filed and certified, as long as the certification
took place before the employee was moved. Please note, however, that if
any other change takes place that constitutes a material change in the
terms and conditions of employment and that affects the beneficiary’s
eligibility for H-1B classification, an amended petition would be required.
Please also note, as discussed in legacy INS correspondence, that the U.S.
Citizenship and Immigration Services (USCIS) does not encourage “speculative
employment”, and the better practice would be for employers to include
alternative locations in itineraries filed with the original Form I-129
petition if they are planning to move employees. Note that the itineraries
must be reflected in a multiple location LCA or multiple LCAs that have
already been appropriately posted and certified. The USCIS must be apprised
of the move when the subsequent LCA is filed with a request for extension.
Additionally, in all instances, foreign nationals who change their place
of residence must comply with immigration regulations pertaining to filing
changes of address on Form AR-11 and special registration, if applicable.
Please be aware that the USCIS will explore the issue of the need to file
amended H-1B petitions in the context of regulations implementing the
American Competitiveness in the Twenty-First Century Act (AC21), and related
legislation. Our position on this issue, therefore, is subject to change.
We hope that this information has been useful to you. If you have further
questions concerning this matter, please do not hesitate to contact this
office at the above address.
Efren Hernandez III
Director, Business and Trade Branch