It is not unusual that during the validity period of Labor Condition Application (LCA) (which can be issued for up to 3 years), the H-1B employee’s place of employment changes. In 2015, the Administrative Appeals Office issued a very important decision (Matter of Simeio Solutions, LLC) that discusses changes in a place of employment of H-1B workers.
The H-1B employee was originally working in one but the H-1B employer now wants the employee to work in a different location.
Is this possible? Does a new LCA have to be first approved by the Department of Labor? Does the H-1B Employer have to file a new I-129 petition with USCIS and notify USCIS of this change?
This will depend on whether the new place of employment is within the area of intended employment or no.
The new place of employment is within the area of intended employment
Under the Matter of Simeio, if the new place of employment is within an area of intended employment, then the H-1B employer would not have to file a new LCA & would not have to file a new I-129 form notifying USCIS of this change.
The question then arises: What is an area of intended employment?
Area of intended employment is defined as “the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which the certification is sought. If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. However, even a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA.”
Therefore, if an H-1B employee’s place of employment is about to change, it is extremely important to check whether the new place of employment & old place of employment are within the same MSA. If they are, then no new LCA has to be filed and the employer does not have to notify USCIS of this change.
Please note that if the place of employment on the LCA & the new place of employment are within the same MSA, there is still one requirement that will need to be met: the H-B employer will have to post the original LCA in the new work location.
The new place of employment is not in the area of intended employment
If the H-1B employee’s new place of employment & the place of employment as stated on the original LCA that was submitted to the Department of Labor are not within the same area of intended employment, then the H-1B employer would need to file a new LCA & submit a new I-129 petition to USCIS to notify them of this change before the H-1B employee starts working at the new location.
The law requires that any change in terms and conditions of employment of an H-1B employee that may affect his/her eligibility for an H-1B status is a material change that requires that the H-1B employer files an amended petition to USCIS to notify them of any material changes.
The LCA specifies the prevailing wage that has to be paid to an H-1B worker during the validity of the LCA in a specific are of intended employment. Therefore, if the place of employment changes and the new place of employment is no longer in the area of intended employment, USCIS views this as a material change. H-1B employer would have to file a new LCA that would have the new place of employment & new prevailing wage for this location on it, and the employer would also have to file a new I-129 petition to USCIS.
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Please click here to read more about the prevailing wage.
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