On April 9, 2015, the Administrative Appeals Office (AAO) affirmed in the Matter of Simeio Soultions LLC, 26 I & N Dec. 542 (AAO 2015) that changes in the beneficiary’s geographical place of employment is a material change in the terms and conditions of employment. Hence, the Director’s decision upheld the petitioner to file a new or amended H-1B petition (Form I-129) along with the corresponding LCA that may affect the eligibility for H-1B status.
In the past, USCIS guidelines were not very clear on this area, and so the California and Vermont Service Center followed their own independent approaches. The former was more rigorous than the latter in implementing H-1B amendment when the job location changed. So the employers proceeded for an LCA amendment only. But now with the new benchmark from AAO, unilateral trend will be set in place. But on the contradictory, the AAO decision will increase the workload of employers in IT industry as well as Healthcare industry who will now have to demonstrate employer-employee relation each time, undergo a long wait period before the amendment is approved, arbitrary Request for Evidence, risk of denials and not to forget the cost, amongst many other unanticipated factors. We await more clarity from USCIS and always advice to err on the side of caution.