AAO HOLDS THAT A CHANGE IN THE PLACE OF EMPLOYMENT OF AN H-1B EMPLOYEE TO A GEOGRAPHICAL AREA REQUIRING THE CERTIFICATION OF A NEW LCA IS A “MATERIAL CHANGE IN THE TERMS AND CONDITIONS OF EMPLOYMENT” AND THE EMPLOYER MUST THEREFORE FILE A NEW OR AMENDED PETITION WITH USCIS CONTAINING A NEW LCA.
On April 9, 2015, the Administrative Appeals Office (AAO) held, in an extensive opinion, that 8 CFR § 214.2(h)(2)(i)(E) mandates that a petitioner file a new or amended petition with USCIS with a corresponding Labor Condition Application (LCA) in the event of a material change to the terms and conditions of employment specified in the original H-1B petition. Additionally, the AAO found that 8 CFR § 214.2(h)(11)(i)(A) requires petitioners to immediately notify USCIS of any changes in the terms and conditions of employment that may affect eligibility for H-1B status and, if the beneficiary will continue employment, file an amended petition.
Thus, because a change in the place of employment of an H-1B employee to a geographical area requiring that a corresponding LCA be certified may affect status eligibility, it is a “material change” under the above-cited regulations and the employer must file a new or amended petition with the new LCA. In the instant case, having materially changed the beneficiary’s place of employment to geographical areas not covered by the original LCA, the employer was required to immediately notify USCIS and file a new or amended H-1B petition, along with a new certified LCA. Because the employer failed to so file, the AAO affirmed the revocation of the I-129 petition. Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015).
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