Putting an end to the confusion that prevailed among Immigration Practitioners for almost two decades, the Administrative Appeals Office (AAO), in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), on April 9, 2015, clarified that an Amended H-1B Petition[1] is required to be submitted to United States Citizenship and Immigration Services (USCIS) when moving an H-1B worker from one work location to another[2]. Although the holding of this "seminal decision" categorically refers to a move from one Metropolitan Statistical Area (MSA)[3] to another, through dicta, it is logical to conclude that an Amended H-1B Petition would also be required even if the move pertains to within the same MSA.

1. AAO TO EMPLOYERS: SUBMIT AN AMENDED H-1B IF MOVING AN H-
1B EMPLOYEE "WITHIN OR OUTSIDE" THE MSA.
By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.
Introduction
Putting an end to the confusion that prevailed among Immigration Practitioners for almost two
decades, the Administrative Appeals Office (AAO), in Matter of Simeio Solutions, LLC, 26 I&N
Dec. 542 (AAO 2015), on April 9, 2015, clarified that an Amended H-1B Petition[1] is required
to be submitted to United States Citizenship and Immigration Services (USCIS) when moving an
H-1B worker from one work location to another[2]. Although the holding of this "seminal
decision" categorically refers to a move from one Metropolitan Statistical Area (MSA)[3] to
another, through dicta, it is logical to conclude that an Amended H-1B Petition would also be
required even if the move pertains to within the same MSA.
The AAO in Simeio Solutions categorically stated that: "A change in the place of employment of
a beneficiary to a geographical area requiring a corresponding Labor Condition Application for
Nonimmigrant Workers ("LCA") be certified to the U.S. Department of Homeland Security with
respect to that beneficiary may affect eligibility for H-IB status; it is therefore a material
change for purposes of 8 C.F.R. §§ 2l4.2(h)(2)(i)(E) and (11)(i)(A) (2014)." (emphasis added)
Further, the AAO specified that "[b]y failing to file an amended petition with a new LCA, or by
attempting to submit a preexisting LCA that has never been certified to USCIS with respect to a
specific worker, a petitioner may impede efforts to verify wages and working conditions. Full
compliance with the LCA and H-1B petition process, including adhering to the proper sequence
of submissions to DOL and USCIS, is critical to the United States worker protection scheme
established in the Act and necessary for H-1B visa petition approval." (emphasis added)
What is a "Material change?"
Quoting the regulations[4], AAO stated that provided the petitioner continues to employ the
beneficiary, any change(s) in the terms and conditions of employment of a beneficiary which
may affect eligibility for H-1B status is a material change. As such, a Petitioner must
immediately notify the USCIS by submitting an H-1B Amended Petition. Thus, in simple terms,
any change in the terms and conditions of employment of a beneficiary that may affect eligibility

2. under Section 101(a)(15)(H) of the Immigration and Nationality Act (INA) is deemed to be a
material change. See 8 C.F.R. § 214.2(h)(2)(i)(E).
Change in Beneficiary's Work Location outside the MSA listed on LCA is a Material
Change.
Section 212(n)(1)(A)(i) of the Act, 8 U.S.C. § 1182(n)(l )(A)(i) (2012), requires an employer to
pay an H-1B worker the higher of either the prevailing wage for the occupational classification
in the "area of employment" or the actual wage paid by the employer to other employees with
similar experience and qualifications who are performing the same services.
In Simeio Solutions, the AAO stated that because section 212(n) of the Act ties the prevailing
wage to the "area of employment," a change in the beneficiary's place of employment to a
geographical area not covered in the original LCA would be material for both the LCA and the
Form 1-129 visa petition, since such a change may affect eligibility under section 101 (a)(15)(H)
of the Act. As such, such changes could require an Amended or new H-1B Petition, along with
corresponding LCA certified by the DOL, with both documents indicating the relevant change.
As an illustration, it is important to discuss the facts and circumstances of Simeio Solutions. The
Petitioner, an information technology services provider company, had submitted an H-1B
Petition listing on both the LCA and the Form I-129 as Long Beach, California, as the place of
employment. After working for the petitioner in H-IB status for approximately two (2) months,
the beneficiary departed from the United States and applied for an H-1B visa at the U.S Embassy
in New Delhi, India.
Upon being found by the Consular Officer that the beneficiary was providing services to client
not previously identified in the approved petition, the petition was returned to the California
Service Center Director (Director) for review. After conducting site visits, the Director issued a
NOIR. Responding to the NOIR, with its response, the Petitioner submitted a new LCA that
provided two new worksites-in Camarillo, California (Oxnard-Thousand Oaks-Ventura
Metropolitan Statistical Area), and Hoboken, New Jersey (New York-Newark-Jersey City, NY-
NJ-PA Metropolitan Statistical Area)-as the beneficiary's places of employment.

3. Agreeing with the Director's conclusion, the AAO stated that: "...the Form 1-129 and the
originally submitted LCA identified the Long Beach, California, facility as the place of
employment. The previously submitted LCA did not cover either the Camarillo, California, or
the Hoboken, New Jersey, addresses requested in response to the NOIR. In addition, the
Petitioner attested on the Form 1-129 that it would pay the beneficiary a salary approximately
$9,000 less than would be required for the subsequently identified places of employment in
Camarillo, California, and Hoboken, New Jersey, contrary to sections 101 (a)(15)(H)(i)(b) and
212(n)(1) of the Act." As such, the changes in the terms and conditions of the beneficiary's
employment may, and in this case did, affect eligibility under section 101(a)(15)(H) of the Act.
What about Change in Beneficiary's Work Location within the MSA?
In Simeio Solutions the AAO stated that: "Fundamentally, for an LCA to be effective and
correspond to an H-1B petition, it must specify beneficiary's place(s) of employment."
Additionally, in footnote 9, the AAO clarified that a change in the beneficiary's place of
employment may impact other eligibility criteria such as the DOL posting requirements and/or
the Petitioner's obligation to submit an itinerary with the petition listing the dates and locations if
the beneficiary starts performing services in more than one location not identified on the LCA
and the Form I-129 submitted with the approved petition[5]. Thus, although AAO did not
categorically state, it could be logically deduced that even a change in beneficiary's work
location within the same MSA would require an Amended H-1B Petition in order to be fully
compliant with the LCA and/or other regulatory requirements that may impact the eligibility
criteria.
Conclusion
Based upon the foregoing, it could be logically concluded that an Amended H-1B petition would
be required when employers move their H-1B workers to locations not listed in their approved
H-1B petitions and underlying certified LCAs unless the move is classified as being "short-term"
in nature. It is important to reiterate that not only a change of H-1B workers work location
outside the MSA may require an Amended H-1B Petition, an Amended Petition may also be
required for any change in work location within the MSA listed on the LCA and the Form I-129
submitted with the approved Petition.

4. [1] supported by a certified Labor Condition Application (LCA) by the Department of Labor
(DOL).
[2] Unless it as a short-term placement as described at 20 C.F.R § 655.735.
[3] The general concept of a metropolitan area is that of a large population nucleus, together with
adjacent communities having a high degree of social and economic integration with that core.
The Office of Management and Budget (OMB) defines metropolitan areas for purposes of
collecting, tabulating, and publishing federal data.
[4] at 8 C.F.R. § 214.2(h)(11)(i)(A)
[5] See 8 C.F.R. § 214.2(h)(2)(i)(B)