On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a binding, precedential ruling that all U.S. employers must file an amended petition with the agency whenever an H-1B employee moves to a worksite location which was not specified on the underlying Labor Condition Application (LCA) attached to the original petition filing.

The AAO decision formally supports USCIS and DOL regulations and affirms a trend in policy which has been gaining momentum over the past several years. In 2003, an official at USCIS headquarters wrote a nonbinding letter in which he opined that an amended petition might not be required when an H-1B employee moves to a new worksite, provided that a new LCA was approved by the DOL and posted at the new worksite before the H-1B employee arrived there. Since that time, the USCIS has often allowed employers to follow this strategy when H-1B employees moved, without ever officially endorsing it. However, the legal authority for that strategy has always been suspect. More recently, the USCIS’ anti-fraud unit “site visits” have resulted in several instances of H-1B petitions being revoked, including the petition which is the subject of this AAO ruling. We have repeatedly warned employers that a failure to file an amended H-1B petition with the USCIS in these situations could be considered a violation of long-standing, formal USCIS and DOL regulations.

This decision by the AAO is effective immediately and could have a profound impact on employers in the information technology consulting and contract staffing industries, as well as other employers who are not able to anticipate all potential H-1B employee worksites at the time of their original petition filing. There are certain, limited exceptions to the amended petition requirement, including scenarios where the employee only moves a very short geographical distance, such that the existing LCA still covers the new worksite. However, the AAO was also careful to note that even nearby worksite changes could trigger a need for an amended petition, if the move includes other changes in employment. A common example of this could be a move to a new third-party, client/customer worksite, which would normally require the company to submit evidence to the USCIS to confirm its employer-employee relationship with the H-1B worker and its ongoing, exclusive control of his or her employment.