“Material change” has been a prickly issue in the H-1B context. The USCIS has been grappling with it for years. As far as back as 1988, where materiality was defined in the context of Naturalization, the legacy INS dealt with it in Kungys v. United States, 485 U.S. 759, 770-72 (1988).
In the above cited case, the Court concluded that:
1. For purposes of § 1451(a)’s “concealment or misrepresentation” provision, the test of whether concealments or misrepresentations are “material” is whether they can be shown by clear, unequivocal, and convincing evidence to have been predictably capable of affecting, i.e., to have had a natural tendency to affect, the Immigration and Naturalization Service’s decisions .1 This test is consistent with the lower federal courts’ uniform understanding of the “materiality” concept as embodied in other federal statutes criminalizing false statements to public officials. See, e.g., 18 U.S.C. §§ 1001, 1621, and 1623. The dicta in Chaunt v. United States should not be used to construct a different materiality standard in the immigration context. Materiality under § 1451(a), as under other federal statutes, is an issue of law, which is for the court, and not one of fact, which must be decided by the trier of facts. Pp. 485 U. S. 767-772.
Although there have been several USCIS and Legacy INS memoranda on situations that require the filing of amended petitions (e.g., Memo dated August 22, 1996 from Alexander Aleinikoff, Executive Associate Commissioner, Office of Programs, INS), the USCIS has opined that these only discuss instances where an amended petition is not required and do not define, or discuss what constitutes material change(s) in an approved Form I-129.2
However, in what appears to be a move on the part of the USCIS to further regulate the H-1B program and offer dubious clarity on “material change” in the context of filing an amended H-1B petition, the AAO has handed down a precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). In this precedent decision dated April 9, 2015, the AAO concludes:
(1) 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-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.
In fact, this precedent decision by the AAO clearly states (FN7, Page 547),
To the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded. See, e.g., Letter from Efren Hernandez III, Dir., Bus. and Trade Branch, USCIS, to Lynn Shotwell, Am. Council on Int’l Pers., Inc. (Oct. 23, 2003).
As many would remember, the Efren Hernandez letter dealt with “material change” in the context of a new work location and stated unequivocally that so long as an LCA was obtained to document change in work location, an amended petition was not required.
The facts of Simeio Solutions, LLC are not unique and mirror for the most part, the existing state of affairs in the IT Services/Consulting industry. As clients constantly remind us, the issue is further compounded by the lack of H-1B Visa numbers for a majority of the calendar year and the need to present documentation of an “employer-employee relationship” six months prior to the actual start date in October.
Be this as it may, the real issue here is the fact that the change of Beneficiary’s employment location was revealed, not by the employer of its own volition, or an LCA filing, but by the USCIS’ ASVVP program (See Page 543). It has long been the view of several practitioners that I have spoken to that the ASVVP program raises the evidentiary standard in H-1B proceedings from the “preponderance standard” to the “beyond a reasonable doubt standard” (reserved for criminal cases). Although, not every petition filed results in a site visit, the mere fact that the site visit exists as a means of verifying the work location, originally specified on the petition, would in turn necessitate the filing of an amended petition.
Although terribly onerous and inconvenient, Employers should immediately make efforts to comply with this precedent decision and commence a process of internal audit to determine instances where an amended petition would be required. This decision places a severe burden on existing businesses that used the Hernandez guidance as a means of justifying the non-filing of an amended H-1B petition with the aid of an amended LCA. What is even more daunting has to do with the USCIS’ policy of relentlessly testing the amended petition for compliance with the “Employer-Employee Relationship” requirements espoused in the Neufeld Memo dated January 8, 2010. H-1B Visa holders cannot plan to return home and present existing documentation at the U.S. Consulate unless an amended petition has been approved. The Simeio Solutions matter has made certain what we have only gently alluded to when advising clients traveling abroad. Any deviation from the original petition and work location specified will necessitate the filing of an amended petition.
[1] The USCIS discussed this in the EB-5 context – Policy Memorandum dated May 30, 2013, EB-5 Adjudications Policy (PM-602-0083). The Memorandum – picking up language from the Kungys decision states, “change in fact is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision.”
[2] However, see also Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,420 (June 4, 1998) (Supplementary Information) (stating in pertinent part that the “proposed regulation would not relieve the petitioner of its responsibility to file an amended petition when required, for example, when the beneficiary’s transfer to a new work site necessitates the filing of a new labor condition application”).