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Immigration Issues/Change in Project Location and H1B transfer or amendment

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QUESTION: Hello Mr. Ajay,

I got one project 60 miles away from my place and so my employer has filled for LCA with that project location and filled H1B Transfer on that Project Location.

Now within week of filling of above H1B Transfer application, I got new project which is near to my house and so instead of joining project that is 60 miles away from my place...am planning on joining project that is near to my place.

My question here is that should I file new LCA and H1B Transfer for my new project location and revoke in progress H1B Transfer petition with my old client work location? or I only need to file for new LCA based on change in work location and don't do anything to H1B Transfer application that is already in progress? If not, then what is the recommended approach for this situation?

Kindly advice !!!

ANSWER: Hi,

A certified LCA for the new location should be obtained as the first step.

An amended H1B petition is not required if the only change is the location of the job if otherwise the terms of your employment remain the same with respect to similar job duties and responsibilities. Minor changes are salary are acceptable as well without the necessity of filing an amended petition.

If a H1B transfer petition was filed, another H1B transfer petition should be filed for the new location since the employment described in the already H1B transfer petition is no longer applicable. However, if instead of an H1B transfer petition it was an amended petition that was actually filed by your employer (check with your employer if it was a transfer or amended petition) for the project location 60 miles away, you should consider having the employer withdraw the amended H1B petition. A new amended H1B petition is not required to be filed if there is no material change in employment (other than job location to the project near your place).


---------- FOLLOW-UP ----------

QUESTION: Thank you, so now I have following scenario.

My H1B Transfer petition was filled in premium with project that is 60 miles away and it's in process right now. After I filled for H1B Transfer in Premium, I got project confirmation on project location that is near to my place.

So now...should I wait and get approval on H1B Transfer petition that is in premium and once I have that approval then I can go ahead and file for LCA for new project location in two weeks? Also in this case once I have H1B Approval...do I need to file new H1B amendment for new project location or only filing LCA for new project location should work here?

Or should I revoke H1B Transfer petition in process and file for another fresh H1B transfer application in premium...also does cost of amending h1b application similar to cost of filling new h1b transfer?

Kindly advice.

Answer
Since it is filed through premium processing, within 15 days of filing it will either be approved or an RFE (request for evidence) issued. If approved, no action is required if the only material change is job location except for the employer keeping a new certified LCA for the new location in your personnel file.

If there is an RFE issued on the basis of job location, then the RFE response will indicate that the location indicated on the H1B petition is no longer applicable. This will probably result in denial of the H1B petition. Thus, if an RFE is issued, go ahead and have the employer file a new H1B transfer petition (ideally before your I-94 expires). If a new H1B transfer petition is filed, the pending H1B petition can be withdrawn by your employer.

No matter what, go ahead and have the employer obtain a new LCA.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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