H-1B: To Amend or Not to Amend?

The H-1B visa is one of the most highly regulated visa categories there is. Any change in the terms and conditions of employment associated with the H-1B, such as a change in job duties, a change in salary, a change in job location, and definitely a change in employer, triggers considering whether the H-1B needs to be amended. Look at it this way: the H-1B visa, as with any other visa, is specific permission from the U.S. government for an individual to work in the U.S. for a specific employer. Once there is a change, the employer and employee must determine whether new permission must be granted. The H-1B process consists of two main steps: (1) filing a labor condition application (Form 9035 or "LCA") with the U.S. Department of Labor ("DOL") and (2) filing an H-1B petition (Form I-129) with the U.S. Citizenship and Immigration Services ("USCIS"). The LCA is an attestation to the U.S. government that the H-1B employer is not hiring the H-1B employee under conditions that would adversely impact those of other similarly situated employees, that the employer is paying the individual the higher of either the prevailing wage or the wage paid to other similarly situated employees, that proper notice has been given, and that no strike, lockout, or work stoppage exists in the H-1B occupation at the same place of employment. It is also an attestation regarding job conditions such as job title, duration of the employment, place of employment, and wage/salary. In a precedent decision on April 9, 2015, the Administrative Appeals Office ("AAO") of USCIS issued a decision regarding when an employer must file a new LCA and therefore a new H-1B petition in Matter of Simeio Solutions, LLC. What was so surprising about this decision was that it put into question accepted practices that appeared to have been supported by prior USCIS guidance. On May 27, 2015, USCIS issued new guidance in response to the Simeio decision. According to the new guidance, and consistent with the decision of the AAO, where an employee will be working at a place of employment outside of the Metropolitan Statistical Area ("MSA") of the previous place, a new LCA, and therefore a new H-1B petition, must be filed. There are nuances and exceptions for short-term placements, placements for training purposes, and employees who travel on a regular basis. Whenever any change to the terms of employment is considered, please make sure that you contact your Clark Lau LLC attorney prior to making any changes to determine whether any action, such as filing a new LCA and new H-1B petition, is needed. Such changes include when the employee resigns or when the employer terminates the employee.