You graduate with a Master’s Degree in Computer Science form an US University. You find a job with a Computer Consulting Company. You applied for the H-1B quota and got selected in the lottery with only 25-35% chance. You got your H-1B, applying on March 31 for the job to start in October. You join the job in October in Houston, but your employer finds a better job for you in New York. You are glad to go, you get more money, and well, NYC is more fun to live in. Actually you think as soon as this job finishes, you will get a job somewhere else, maybe in the mid west. What a wonderful way to experience America.
And then In the Matter of Simeio came out and Citizenship and Immigration Service will now require every change in location out of a Metropolitan Statistical Area, your employer will have to file an amended H-1B instead of just another Labor Condition Application, as was the procedure before.
Facts of the Case
Bad facts make bad law. And Citizenship and Immigration Service loves bad law. Employer filed H-1B and Labor Condition Application for an In House project with an address in Long Beach, CA for $50,232/- Employer moves employee to a third party location in Camarillo CA and Hoboken, NJ. Employer files new Labor Condition Application, but not an H-1B amendment. These placements were not short term placements. The Citizenship and Immigration Service’s audit found the initial H-1B address is actually a home address. The question that the Administrative Appeals Office (AAO) decided is whether a change of location to a new Metropolitan Statistical Area (MSA) constituted a “Material Change” requiring the employer to file an amendment.
THE DECISION:
In a precedent decision the AAO held that a change of location to a new metropolitan area, requiring 9000 USD more yearly, is a material change. They based it on three grounds:
1. Apparently the original Labor Condition Application was 9000 yearly less, and that was huge to the AAO.
2. The change in location to another place in the USA was MATERIAL
3. The original petition does not have this new itinerary
GRIPE:
Time used to be when people traveled an entire day in carriages to travel 50 miles. Time used to be when 9K used to mean a lot. These were material changes. But this is the 21 C. We work at the speed of light.
The REAL reason why filing the Amendment is controversial: In 2010, Citizenship and Immigration Service came out with a memo imposing stupid requirements that these professional has to be controlled. Then the ex-congressman who actually proposed the H-1B regulation told them Congress had no intent to control H-1B employees. This Congressman is now an immigration attorney representing the health care industry. So Citizenship and Immigration Service still uses the control memo, but selectively applies it only for the Computer Consulting Industry.
Disney said it’s a small world in 1964. Since then, we have invented the net, Facebook, Twitter, etc etc. Yet the Labor Condition Application gives you only 3 locations that one can work from. I can completely understand that the Department of Labor has a responsibility to not have employers hire H-1B employees (at 65K people annually, really?) and pay them less than Americans. But if the pay is in 6 figures, it should meet the criteria in all of United States. Before you require employers to file amendments, costing them attorney’s fees, why can you not have a Labor Condition Application option that covers The ENITRE U S of A?
Please contact Houston Immigration Attorney , Annie Banerjee for more information
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