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 H-1B petition.
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