INS Advises on H-1B Nonimmigrant Classification

Richard D. Steel, Esq.
Suite 936 Public Ledger Building
Sixth & Chestnut Streets
Philadelphia, PA 19106

Dear Mr. Steel:

This refers to your letter of November 3 in which you pose two questions concerning the H-1B nonimmigrant classification.

In your first question you ask whether an amended H-1B petition should be filed when an alien is transferred from one locations to another by the same employer and where the company has a valid labor condition application (LCA) for both locations.

This office has previously provided guidance to both the field and to Immigration practitioners that an amended petition should be filed in the situation where an employer transfer an H-1B nonimmigrant alien from one location to another and where the employer must obtain a new LCA from the Department of Labor. Since the employer in the example described in your letter will not be required to obtain a new LCA, it is my opinion that the employer does not need to file an amended petition to reflect this change in employment. The employer should, however, notify the Service of the change when and if it files to extend the alien's temporary stay.

In your second question you ask whether an H-1B nonimmigrant who is transferred by his or her employer from one location to another location can begin employment at the new location before the amended petition referencing the change in location is approved by the Service.

The regulation does not provide any guidance with respect to this question. While the regulation requires the employer to file an amended H-1B petition where there has been a material change in circumstances, the regulation does not require that the alien wait for the approval of the amended petition. While the Service would prefer the alien to remain at the first location until such time as the amended petition is approved, it is recognized, from a business perspective, that this may not be a reasonable position in all situations. Therefore, it is the opinion of this office that the alien may transfer to the new location prior to the approval of the amended petition.

I trust this response satisfactorily addresses your concerns.

Sincerely,

Yvonne M. LaFleur
Chief, Nonimmigrant Branch
Adjudications

27MM6B01