Don’t Forget the New Rules for Changing Locations for H-1 Employees: CIS is Already Using Audits to Insure Compliance!

Just as a reminder, on April 9, 2015, the Administrative Appeals Office (AAO) issued an important decision which significantly changed the process and requirements for H-1 employees who change locations. More accurately, the AAO decision was really a return to the requirements which were in place from the early 1990s until a series of INS/CIS “Memo” in 1996, 1998, and 2003 change the original interpretation of the H-1 regulations into something which, frankly, directly contradicted what the regulations require. In that sense, the new AAO opinion simply follows the original regulation as written and therefore should not really be a surprise to anyone who has practiced H-1 law since the passage by Congress of the Immigration Act of 1990, and the resulting DOL and INS regulations.

The new/old rule is that when an H-1 employee changes locations (which means goes to work at a location outside the Standard Metropolitan Area stated on the LCA), then a new LCA must be filed. Until April 9, the filing and approval of the LCA was all that was required. Under the new rule (which, again, is really the original rule) the new location LCA must be filed as well as an amended H-1 petition with CIS.

Obviously employers would prefer not to file new H-1 cases every time an employee is moved to a new location. The only strategy to try and prevent this is to file an LCA for every conceivable location the company might transfer an employee to, and to file all of these LCAs when the original H-1 petition is filed with CIS. As we used to do many years ago, that might result in dozens of LCAs being filed originally for the change of status or consular processing when the H-1 employee is initially hired. That may sound cumbersome, but it is much less expensive and time consuming than having to file a new LCA and an entire H-1 case with CIS for each employee transfer. For example, assume the company has a parent office in Dallas and 10 other offices around the US. For the first H-1 case, there will be 11 LCAs filed so that if the H-1 employee is sent to any of the company’s offices, there will not be any requirement to file a new LCA and therefore no requirement to file a new H-1.

This process becomes more complicated when the H-1 employee is required to work at a client site but it is still better to file an LCA for every one of the existing client sites as well as making educated guesses as to where a new client site might be in the future based on the current marketing efforts of the company. Just because an LCA is filed for Los Angeles because there is a potential client there does not mean the H-1 employee is required to ever work there. But an LCA will be in place if a new client is “signed up” in LA and no new H-1 will be required if an H-1 employee is sent to that location.

Finally, note that many of the LCAs filed under this strategy will have different prevailing wage determinations for each location. If an H-1 employee is transferred to a new location which is already covered by an LCA filed with the original H-1, the prevailing wage for that location/LCA must be paid as long as the H-1 employee works there.

In summary, a relatively small amount of work on extra LCAs filed with the original H-1 petition will prevent a tremendous amount of work down the road if the H-1 employee is transferred to a new location, or worse, new locations. As always, make sure your immigration attorney is planning ahead to decrease the cost and administrative burden on your company when dealing with the immigration process. That is what our clients expect of us, and it is what our firm delivers.

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