In response to the recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC, USCIS is expected to implement new guidance for employers of H-1B workers in the event of a change in the employee’s work location. This precedent decision holdsthat an employer must file an amended H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to an H-1B employee’s change of worksite location.
The question then becomes, when is a new LCA required?
Not every change in work location necessitates the filing of a new LCA. The determination centers around whether the new worksite location steps out of the current metropolitan statistical area (MSA).
Metropolitan Statistical Areas
MSAs are designated by a large metropolitan city and include any nearby countries that significantly contribute to the economic and social function of the core city. According to the federal Office of Management and Budget (OMB), a city with a population of at least 50,000 may be designated as the core city, and any nearby counties must send at least 25% of its workers into the core city or vice versa. The OMB’s object is to categorize groups of countries that have strong working relationships together under one identifiable area—an MSA.
The OMB has provided a list of all MSA designations on their web site at http://www.white.house.gov/omb and population statistics are available on the Census Bureau’s web site at http://www.census.gov/population/metro.
A Step-by-Step Guide
To quickly check which MSA designation your worksite location (city or county) is in follow these steps:
- Go to the OMB web site https://obamawhitehouse.archives.gov/sites/default/files/omb/bulletins/2015/15-01.pdf
- Within this bulletin, focus primarily on List 2, which provides the 388 MSAs and/or List 6, which identifies the MSAs within each state;
- To quickly locate your city, on your keyboard, while holding [Ctrl], press [F] and a small search box will appear on the screen—type in your city to find a match.
a. If there is a match, the name of the MSA that contains your city will be listed above.
b. If zero results show up, then the city may not be significant enough for the OMB to list under the area.
c. However, if you know the county name of your work site location, that can be searched as well.
Therefore, if you check the intended new work site location for an H-1B employee and it does not match the previous MSA, then you will be required to file a new LCA which necessarily requires an amended H-1B petition under the new USCIS guidance.
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.