When an H-1B petition is filed for a beneficiary who is working a third-party worksite, sometime the beneficiary changes the end client worksite before the H-1B petition is adjudicated. What can be done in this situation, when USCIS issues a request for evidence (RFE) and asks for documentation of the employee-employer relationship, but the end client worksite has changed?
Our office has seen this situation numerous times. It used to be that USCIS would accept an RFE response with a new LCA that was certified while the original H-1B petition was pending. The petition was approved as long as we could document that both job opportunities (at both worksites) actually existed. These days, based on our experience, USCIS will not accept an LCA for the new worksite unless it was certified before the petition was filed. Here are some of the strategies that we consider:
- First, is the new worksite within the same MSA or within commuting distance of the worksite listed on the H-1B petition? If the new worksite is within the same MSA or within commuting distance of the original worksite, it should not be necessary to have a new LCA certified for the new worksite. That is, you should be able to use the same LCA as long as the posting requirements are met. In this case, you would only need to show that the job opportunities existed at both worksite locations (this is tremendously important) and explain the change.
- If the worksite is not within the same MSA or not within commuting distance of the original worksite, you would need a new LCA for the new worksite. The problem is that USCIS requires the LCA to have been certified as of the time of filing the original petition. While in rare instances this may be available, often the new worksite location is not anticipated and therefore there is not an LCA already certified.
In our experience, USCIS will not just accept a newly certified LCA for the new worksite, if it was not certified as of the time of the original filing. While there is no official USCIS guidance on this, this is our understanding both from direct experience and from having spoken with USCIS premium processing officials.
Therefore, in H-1B transfer or extension cases, we file an amended petition for the new worksite with the newly certified LCA. We then also file the RFE response for the original petition with evidence that the job opportunity actually existed, as well as a copy of the receipt notice for the amended petition that has already been filed.
If the H-1B petition was a cap case, extra precaution should be taken in planning the strategy. A denial of the originally filed petition could mean the beneficiary would have to wait until the next time the H-1B cap opens to re-file the petition.
A change is worksite when the H-1B petition is still pending is never convenient, but with careful strategic planning, a successful outcome is possible.
Do you need help with an H-1B filing or other employment-based or family-based immigration matter? Contact us today at 804-396-3412 or firstname.lastname@example.org to learn how we can help you reach your immigration goals!