I-485 will be denied if you continue with same employer....

[pralay]

If a company has an LCA for location X, and they apply for H1 based on this location. H1 gets approved.
Now the beneficiary moves to location Y on a project. Company applies for LCA for that location Y. Now what?

Does the company have to apply for a H1 amendment based on location Y?

Once the LCA for location Y is approved, the H1 holder can start working there (not before that). If H1 is valid, job profile is same and employer is same, H1 amendment is not required.

What are the LCA and H1 rules for a consulting company i.e. where, say, a consultant has to move around US for like 6 months project each time?

Employer needs to obtain LCA for each location.

 

[tammy2]

Technically When an H1B employee moves to new location you need to file an H1B amendment after getting new LCA. Many employers get the LCA but will not amend H1 as they think this is not the material change in H1 because all other condition remains same.

As for as applying for GC earlier it was required that LC should be files where employee will be working after the approval of the GC. Later DOL amended this and allowed to apply the GC from HQ of the company.

There were some cases (I think above case also one of these) where Baltimore office denied because of this location problem but later it got resolved.

 

[pralay]

Technically When an H1B employee moves to new location you need to file an H1B amendment after getting new LCA. Many employers get the LCA but will not amend H1 as they think this is not the material change in H1 because all other condition remains same.

Actually if employer is same, job profile is same and the "work site" is "temporary" in nature (for example, it is 6 months contract), only new LCA is required for new location. Some people calls it "LCA Amendment". H1 amendment is not required.
H1 amendment (basically LCA amendment + H1 amendment) comes to picture only when the new location is going to be permanent. For example, IBM is relocating one H1 employee from California to Texas.

 

[tammy2]

Actually if employer is same, job profile is same and the "work site" is "temporary" in nature (for example, it is 6 months contract), only new LCA is required for new location. Some people calls it "LCA Amendment". H1 amendment is not required.
H1 amendment (basically LCA amendment + H1 amendment) comes to picture only when the new location is going to be permanent. For example, IBM is relocating one H1 employee from California to Texas.

Usually small consulting companys will not call new assignment as temporary because it includes lot of overheads. Companys like IBM do this. That is the reason they need to apply for H1 amendment

 

[TheRealCanadian]

What if the beneficiary is not eligible for 245i (for example if his labor was approved after June 2002)? What would be his options?

Since he does not appear to be subject to a re-entry bar, Consular Processing. That would of course preclude AC21 portability and *strong* evidence would need to be presented that the alien would be working in MA.

Infact they had made the case stronger for the district director to issue a denial notice. It ventured into areas the director had not mentioned (like H1B locations) and given a hint to the director that the beneficiary might not be eligible for 485.

Yes, but the ruling is legally correct. Keep in mind is that if you want to fight USCIS you should make sure that you are squeaky clean.

A labor substitution technically should match only education and experience. In that case, a beneficiary is not bound by the location for which the labor is approved for, right?

Why not? You are merely substituting the alien beneficiary; all of the job details remain the same.

 

[pralay]

Pralay, this makes sense. However, aao was hanging onto the word "material change". I know from an accounting point of view materiality is very subjective. The onus would now be on the lawyer to prove that moving around is not a "material change" that would require amendment to h-1b..

How would you argue that it is not a material change, thus not requiring amendment to h-1b?

I think they are referring it as "meterial change" because employee never had a "permanent" location. For example, if an H1 employee has perm location A (say, the office HQ), goes to location for work B for 1 years. Then comes back to location A and keeps working there. As mentioned before (don't remember which thread, because we have atleast three threads running on same topic), some "good" consulting company operate that way - keeping a permanent location for consultant employees.
But in case of Netguru, this unfortunate H1 employee never had any perm location. His initial LCA was for Waltham, MA where he never worked. He worked at Baltimore, MD, then probably at Torrence, CA and so on and on. That way his perm location itself was changing periodically. That could be the basic reason they are calling it "meterial change".
Whole thing is my just wild guess though.

 

[pralay]

Usually small consulting companys will not call new assignment as temporary because it includes lot of overheads. Companys like IBM do this. That is the reason they need to apply for H1 amendment

I don't think so. The "consulting (to client)" itself is temporary in nature. It's "contract" and it got to be temporary in nature. In fact, most of the contracts they sign have specific timeframe. So, why not it's "temporary"?

 

[tammy2]

I don't think so. The "consulting (to client)" itself is temporary in nature. It's "contract" and it got to be temporary in nature. In fact, most of the contracts they sign have specific timeframe. So, why not it's "temporary"?

Well That is what the advice we got recently in one of our company's case. Also I have put this question on the forum earlier. I am unable to search that.

 

[sree1965]

The problem is from the Lawyer.

In ETA 750 Form of Part A and No 7(Address where alien will work) :
Lawyer wrote "Waltham, MA"

Usually for the consulting companies :
"Various unanticipated work site locations throughout United States and Assignments generally 4 to 10 months in duration".

In ETA 750 Part A, if it is written as above, you are 100% safe.

That is the difference. And more over his badluck, the file transfered to Baltimore,MD for the Interview.

Small mistake by the lawyer ...and big punishment to the consultant....

 

[gcva]

What if the beneficiary is not eligible for 245i (for example if his labor was approved after June 2002)? What would be his options?

Again the ruling is fishy. They had neither denied nor approved the case. Infact they had made the case stronger for the district director to issue a denial notice. It ventured into areas the director had not mentioned (like H1B locations) and given a hint to the director that the beneficiary might not be eligible for 485.

Also it will be interesting to know how they would handle substitution labor in that case? A labor substitution technically should match only education and experience. In that case, a beneficiary is not bound by the location for which the labor is approved for, right?

I think my I129 doesnot specify a location of work. I am not sure I would get into similar trouble.

-dyno

I think in Labor substitution cases also location matters.Since the substitued alien has to file another 750 along with 140 filing to the USCIS.In this 750 the location has to be same as the location in Original 750.Otherwise,original labor cant be used.