H-1B holders working at multiple worksites must have a Labor Condition Application (LCA) on file for each worksite. Last week the USCIS Administrative Appeals released a decision that states any geographic change in the workplace listed on the LCA accompanying all H-1B visas requires filing an amended application. Also, any material change in the terms and conditions of the employment requires the filing of an amended H-1B with a new LCA.
Matter of Simeio Solutions, Inc., the case decided last week, reinforced this requirement. In the instant case, a foreign worker in India obtained an H-1B and applied for the visa at the United States Embassy in New Delhi. During the interview at the embassy the applicant indicated that he performed services not reflected in his application. This prompted an investigation by the USCIS, which included a visit to the worksite.
The USCIS investigators were unable to locate the worksite as listed on the LCA. After contacting the petitioner’s director of operations it was revealed that the worksite had moved to an employee’s home. Ultimately the court concluded that a change in worksite location is a material change in the application and requires the filing of an amended application.
Many United States employers require their employees to conduct work at multiple worksites. According to the State of California Employment Development Department, approximately 6% of employers in California conduct business at multiple work locations. These employers make up about 44% of California’s total employment. This suggests that many workers in the United States may work for a single employer at multiple workplaces. Foreign workers may also be expected to work at multiple worksites.
Foreign workers in the United States should take note of the worksite listed on their LCA and ensure it matches their place of employment. Multiple worksites can be listed on a single LCA or multiple LCAs can be filed with a single H-1B application. All LCAs should accompany the H-1B application. If the Immigration department conducts an unscheduled audit of a workplace listed on the H-1B application, and finds that the foreign worker is not performing services there, it may have serious immigration consequences.
The USCIS reserves the right to audit/inspect the worksites listed on an H-1B petition. Audits can occur at anytime and can occur without notice. Employers must ensure that the foreign workers are working in accordance with their H-1B petitions that includes the LCA.
If a foreign worker is assigned to a different work location that is not listed on the LCA that accompanied his/her H-1B application, an amendment must be filed. Contact the Law Office Of Sweta Khandelal today to discuss filing your amended application. Attorney Sweta Khandelwal is an immigration attorney with extensive experience in employment based immigration applications.
Matter of Simeio Solutions, Inc., April 9, 2015, U.S. Department of Homeland Security, USCIS Administrative Appeals Office.
Multiple Worksite Report, State of California Employment Development Department, 2014