Wednesday, October 19, 2011

NEW H-1B WHEN A CHANGE IN GEOGRAPHICAL LOCATION?

Staffing companies provide value in industries where there is a shortage of qualified labor because the ability for flexible labor is great. Similarly, high rates of immigration are common in occupations where there are shortages of labor.

It is therefore understandable that many companies that employ large numbers of immigrants are staffing companies. The H-1B visa is the most common visa vehicle for these workers. Healthcare staffing companies often employ Physical Therapists and Occupational Therapists via the H-1B visa.

These companies often then have to move these workers to new geographical locations as dictated by client’s needs. While a new or amended H-1B visa is required when there is a material change in an employee’s job duties, a new or amended H-1B visa traditionally is unnecessary when an H-1B worker moves to a new geographical location.

As Musillo Unkenholt explained in an April 2010 letter to a public inquiry request by the USCIS,

In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.

Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker’s underlying job duties.

In AILA’s notes from an October 5 meeting with the USCIS, the USCIS implied that it may soon require a new or amended H-1B to be filed when there is a change in the worker's geographical location. The USCIS full comments were:

USCIS RESPONSE: This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review. We will take AILA’s views into consideration when finalizing the policy on what circumstances would require an amended petition to be filed with USCIS.

There is no rationale for a change in policy on this issue other than to create additional administrative burdens on H-1B Petitioners. Musillo Unkenholt hopes that the USCIS instead focuses its efforts on those who abuse the immigration system.

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