Do you place any of your H-1B employees at client sites or have them telecommute from home?
If so, please be sure to read the below post about important developments related to these types of employment.
Recently, the California Service Center of the USCIS issued a fresh attack on the consulting and staffing industries as a whole. This is the latest step in an increasing litany of H-1B revocations that practitioners are seeing these days.
H-1B workers: changing job locations
Many consulting companies place their H-1B employees at third-party client sites. Frequently, these H-1B workers change projects, end clients or relocate to a different client site during their H-1B validity period.
Pursuant to previous USCIS guidance, we have advised that when there is a change in the job location, but all of the other terms of an H-1B petition remain valid (including title, duties, and salary), then the petitioning employer only needs to file a new LCA for the new job location(s) and ensure that the proper posting and compliance for each new LCA has been performed.
New considerations for filing H-1B amendments
In recent discussions with the California Service Center, it has become apparent that the CSC is starting to consider a change in the job location a “material change and, as a result, requiring an H-1B amendment to be filed.
Case in point, one practitioner reported a revocation for an IT consultant who changed worksite and did not file an amended petition. In this case, a new LCA was properly filed for the new worksite before the work began. The revocation stated that for IT consultants going from one assignment to another, it is not a mere change in location but a material change since the end client must confirm the details of the beneficiary’s placement.
Next steps for employers of H-1B workers
The takeaways from this revocation are:
- It is not the location that is the material change but the end client.
- USCIS is heading in the direction of requiring IT consulting firms to file amended petitions for each change in assignment.
However, the Vermont Service Center has not yet adopted the California Service Center’s approach. If the USCIS as a whole pursues these types of revocations, there will be profound repercussions on the consulting industry. Filing amended H-1B petitions for each change in project or work location is a substantial burden on employers.
Given the recent trend, our recommendation is that, if at all possible (and we fully realize that it may not be practical), H-1B amendment petitions should be filed when there is a change of job location (including working from home) for petitions filed with the California Service Center. Due to this trend in review we believe it is safer to also file petitions with the Vermont Service Center.