Written by attorney Anu Gupta

Change in work location – new LCA or amended H-1B?

Question. My client just terminated the contract for my consultant/employee. I have another client where my consultant will start working next week. Do I need to file a H-1B or can I just get another LCA?

Answer. A new LCA is, of course, in order, but being a conservative attorney, I hold the view that a H-1B amendment should also be filed if the new client’s location was not listed on the initial H-1B petition.

As of 2012, there is no clear cut law that governs in this situation. However, what is clear is that a H-1b visa amendment is due if there is a material change in employment. Thus an amended H-1B is required if an employee goes to work for a new employer, or when the job duties change substantially, or when the employer mergers with another company to create a new company. Per the Adjudicator’s Field Manual, an H-1B amendment is not necessary if the labor condition application (LCA) that was filed continues to be valid.

The LCA will only be valid if the new client’s location is listed on the LCA that was filed with the initial H-1B as a work-site. If it is not, I recommend that a H-1B amendment be filed even though current laws do not spell this out. The reason I recommend an amendment is because CIS has demonstrated their intention that a H-1B is specific to work location. The latest H-1B form requires us to list the exact work location. Upon the filing of the initial H-1B petition, CIS has also been insisting on a complete itinerary for the entire time requested.

Keep in mind that the amendment only costs the base fee of $325 (plus attorney’s fee), instead of a full filing fee. It may be a small price to pay for peace of mind. In this extremely conservative environment, when the rules regarding H-1Bs get more restrictive each year, it is a good practice to err on the side of caution.

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