Employment Law

LinkedIn Search Doesn’t Implicate FCRA, California Court Rules

Why it matters

Granting LinkedIn’s motion to dismiss, a federal court judge in California held that LinkedIn users could not sue the site for violations of the Fair Credit Reporting Act (FCRA). A group of users claimed that they were not hired for jobs after potential employers utilized the site’s Reference Searches function, which provides a list of other LinkedIn users that may have worked with the applicant. The social networking site moved to dismiss, arguing that the report generated by the function was not a “consumer report” as defined by the statute and that LinkedIn was not a “consumer reporting agency” under the FCRA. The court agreed. All of the information in the reports generated by LinkedIn was derived solely from the plaintiffs’ experiences and transactions with the site, the judge noted, and the plaintiffs provided the site with information about their employment history for the purpose of being published online.

Detailed discussion

Seeking to work in the hospitality industry, Tracee Sweet submitted her resume to a potential employer via LinkedIn. Sweet was invited to interview for the position and was told she would be hired for the job. But the company then called her back to say it had changed its mind after checking some references and declined to give her the job.

Sweet later learned that the references may have been the result of LinkedIn’s “Reference Searches” function, where employers can find people with whom an applicant may have worked previously.

For users that pay a subscription fee, the Reference Search results provide two categories of information: the name of the subject of the search and names of his or her current and former employers and a list of LinkedIn members who are in the same network as the search initiator and who may have worked at the same company as the applicant during the same time period.

Sweet—joined by other individuals—filed suit in California federal court alleging the Reference Search results violated the Fair Credit Reporting Act (FCRA). LinkedIn markets the searches as a way for potential employers to find “trusted references for job candidates” and to “[g]et the real story on any candidate,” Sweet argued, encouraging the search initiator to contact the listed references.

LinkedIn moved to dismiss and U.S. District Court Judge Paul S. Grewal granted the motion, ruling that the searches did not fall within the statute’s definition of a consumer report.

“LinkedIn’s publications of employment histories of the consumers who are the subjects of the Reference searches are not consumer reports because the information contained in these histories came solely from LinkedIn’s transactions or experiences with these same consumers,” the court said. “The FCRA excludes from the definition of consumer report ‘any report containing information solely as to transactions or experiences between the consumer and the person making the report.’ ”

The plaintiffs’ own allegations demonstrated that consumers provide LinkedIn with information about their employment histories so that the site can publish it online, Judge Grewal noted. “[S]haring information is precisely why the subject here or anyone else on LinkedIn provides their employment histories to LinkedIn,” he said.

The inclusion of information about the listed references did not take the search results outside of the exception, the court added. Even though it was secondhand information, it was information about the listed references—not the subjects of the searches, and therefore did not include information pertaining to the plaintiffs.

Further, even if the court had found that the Reference Searches fell within the scope of the FCRA, LinkedIn did not act as a consumer reporting agency when it published the results, Judge Grewal said, as “ ‘[a]n entity does not become a [consumer reporting agency] solely because it conveys, without the consumer’s consent, information about the consumer to a third party in order to provide a specific product or service that the consumer has requested.’ ”

The plaintiffs specifically alleged that the subjects of Reference Searches voluntarily provided their names and employment histories to LinkedIn for the purpose of publication, the court wrote. “As LinkedIn notes, the facts alleged in Plaintiffs’ complaint therefore support the inference that LinkedIn gathers the information about the employment histories of the subjects of the Reference Searches not to make consumer reports but to ‘carry out consumers’ information-sharing objectives,’ ” the judge said.

A claim that the list of possible references was itself a “consumer report” failed because the information provided in the search results did not bear on the plaintiffs’ “character, general reputation, mode of living” or other relevant characteristics, the court said. The people listed are allegedly in the searcher’s network, not the subject’s network, and the search results therefore simply communicate whether the searcher is well connected in a certain industry—not the subject.

Considering the purpose of the Reference Searches, the court said the plaintiffs failed to state a claim that they are used or intended to be used as a factor in determining whether the subjects of the searches are eligible for employment.

“LinkedIn markets the Reference Search results—and therefore expects them to be used—as a way for potential employers to locate people who can provide reliable feedback about job candidates and does not market the results themselves as a source of reliable feedback about job candidates,” the court wrote. “[T]he fact that a potential employer could use a telephone directory for a job candidate’s current employer to contact people who know the candidate does not make that directory a consumer report.”

Judge Grewal granted the motion to dismiss with leave to amend.

To read the order in Sweet v. LinkedIn Corp., click here.

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Telecommuting Not Required Accommodation Under the ADA, Sixth Circuit Rules

Why it matters

In a divided opinion, the en banc Sixth Circuit Court of Appeals determined that an employer was not required to offer telecommuting as an accommodation for an employee suffering from irritable bowel syndrome (IBS). The employee filed an Americans with Disabilities Act (ADA) discrimination suit alleging that her employer violated the statute by refusing to allow her to telecommute. The employer moved for summary judgment, arguing that the job at issue required regular face-to-face interaction and that telecommuting was not a reasonable accommodation because the in-person contact was an essential function of the position. A federal court judge granted the motion and a panel of the Sixth Circuit reversed and reinstated the case. But in an 8-to-5 decision, the en banc court reversed again in an employer-friendly decision. “The Americans with Disabilities Act requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or a job schedule—of their choosing,” the majority wrote. The opinion offers a lot to like for employers, from placing the burden of proposing a reasonable, effective accommodation on the employee to a deferential perspective on what the employer considers to be an essential function of a position. Telecommuting may be a reasonable accommodation in some situations, but the Sixth Circuit opinion provides a framework for handling such requests when in-person presence at the worksite is an essential function.

Detailed discussion

Jane Harris worked as a resale steel buyer for Ford Motor Company. She also suffered from a severe case of irritable bowel syndrome (IBS) that caused her to soil herself simply when standing up. She asked Ford if she could work from home up to four days a week.

Ford declined Harris’s request. Her position necessitated face-to-face interactions, the company said, and four days at home was not possible for her position. Harris had also tried telecommuting on multiple prior occasions and had been unable to satisfactorily perform her job, the company noted. Ford suggested alternative accommodations (a desk closer to the bathroom, a job that would permit telecommuting) but Harris refused.

After Harris was later terminated for failing to meet certain objectives, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The agency then filed suit against Ford, claiming the company violated the Americans with Disabilities Act (ADA) by failing to accommodate Harris’s disability and retaliating against her based on the accommodation request.

The EEOC took the position that Harris was otherwise qualified for her position if Ford eliminated the requirement that she be physically present at the employer’s facilities or allowed a telecommuting option. A panel of the Sixth Circuit agreed, finding that Harris’s physical presence was not an essential requirement of her job and that the telecommuting arrangement would not create an undue hardship for Ford.

In a split decision, the en banc Sixth Circuit reversed, siding with Ford.

Regular and predictable on-site job attendance was an essential function—and a prerequisite to perform other essential functions—of Harris’s job as a resale buyer, the court said, noting that the EEOC’s own guidance permits employers to refuse a telecommuting request when a position requires in-person and face-to-face interactions.

Harris herself said four of her ten primary duties could not be performed at home, and the other resale buyers that Ford allowed to telecommute all did so on a regular and predictable basis, just one set day per week with an agreement to come into the office if necessary.

“It follows that Harris’s up-to-four-days telecommuting proposal—which removed that essential function of her job—was unreasonable,” the majority wrote. “The employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job. Harris proposed only one accommodation—one that would exempt her regular and predictable attendance from her resale-buyer job.”

The court rejected the EEOC’s argument that Harris’s own testimony could support the position that on-site attendance was not essential.

“An employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment, for it does not create a genuine dispute of fact,” the court wrote. “Neither the statute nor regulations nor EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential. That’s because we do not ‘allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.’ And for good reason: If we did, every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer to exempt an essential function think they can work without that essential function.”

Harris’s proposal was different from the telecommuting schedules permitted to other resale buyers, the court added, and even the EEOC’s appeal to technological advances failed to sway the court.

The majority did note that its opinion should not be read for the proposition that whatever the employer says is essential always becomes essential. “Our ruling does not, in other words, require blind deference to the employer’s stated judgment,” the court said. “But it does require granting summary judgment where an employer’s judgment as to essential job functions—evidenced by the employer’s words, policies, and practices and taking into account all relevant factors—is ‘job-related, uniformly-enforced, and consistent with business necessity.’ That aptly describes Ford’s judgment regarding regular and predictable on-site attendance for resale buyers.”

As in-person interactions were an essential function of her position, Harris’s request to telecommute was therefore unreasonable, the court said.

“[T]he EEOC must prove that Harris is a ‘qualified individual,’ which means she can perform the essential functions of a resale buyer with a reasonable accommodation,” the court wrote. “The record shows that Harris cannot regularly and predictably attend the workplace—an essential function, and a prerequisite to other essential functions—even with the past reasonable accommodations of telecommuting trials and specialized plans to improve her attendance. And Harris’s proposed unpredictable, ad hoc telecommuting schedule was not reasonable because it would have removed at least one essential function from her job.”

While the court’s conclusion made it unnecessary to consider whether Ford acted in bad faith in the accommodations discussion with Harris, the majority said Ford the company acted in good faith. The employer met with Harris twice and identified multiple alternative accommodations that she rejected.

Turning to the issue of retaliation, the majority again ruled in favor of the employer.

While timing was on the EEOC’s side, “[n]o reasonable jury could find that Ford terminated Harris for a reason other than poor performance,” the court said. “Harris’s performance and interpersonal issues have been well documented,” and she ranked in the bottom 10 percent of her peer group before she filed her discrimination charge with the EEOC.

“In addition to Harris’s past failing, she admitted that she would not be able to attend work on-site in a regular and predictable manner in the future,” the majority wrote. “And this attendance was an essential element of her job. No reasonable jury could find that Ford—a for-profit corporation—would continue to pay an employee who failed to do her job well in the past, and who, by her own admission, could not perform the essential elements of her job in the future. The EEOC thus cannot demonstrate that Harris’s charge was the but-for cause of Ford’s decision to fire her.”

A dissenting opinion criticized the majority for failing to consider the facts in the light most favorable to Harris, as required by a summary judgment analysis. “A reasonable jury might ultimately agree with Ford, or it might agree with Harris,” the dissent said. “The point is that there is a genuine dispute of material fact that only a jury should resolve.”

To read the opinion in EEOC v. Ford Motor Company, click here.

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Time to Feel Better? EEOC Proposes Regs for Wellness Programs

Why it matters

The Equal Employment Opportunity Commission (EEOC) has finally begun the process of establishing rules on the issue of employer wellness programs. After declining to take part in regulations issued by other federal agencies and filing multiple lawsuits challenging employer wellness programs, the agency has issued a Notice of Proposed Rulemaking (NPRM) that would amend existing Americans with Disabilities Act (ADA) regulations and offer interpretive guidance for employers about the interplay of the ADA and the Affordable Care Act (ACA). An employer wellness program must be reasonably designed to promote health or prevent disease and must be truly voluntary, the EEOC said. To be considered “voluntary,” employers may not require an employee to participate in a program and may not deny coverage under any group health plans or particular benefits, or take other adverse actions against employees who do not participate or fail to achieve a health outcome, the NPRM stated. The proposed regulations—currently open for public comment—are important reading for any employer offering a wellness program.

Detailed discussion

In May 2013, the Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the Treasury Department issued guidance to employers offering workplace wellness programs that incentivize employees to improve their health. The regulations—which set forth several requirements for employers—took effect January 1, 2014.

However, one agency was notably absent from the guidance: the Equal Employment Opportunity Commission (EEOC). Declining to participate in the regulations, the agency left attorneys and employers unclear about the application of federal laws like the Americans with Disabilities Act (ADA) (which has a general prohibition on asking disability-related questions unrelated to a job) and the Genetic Information Nondiscrimination Act (GINA) (under which employers are forbidden from asking about an employee’s family medical history) to their wellness programs as the EEOC declined to participate in the regulations.

The EEOC further confused the industry by then filing three lawsuits challenging wellness programs and triggering a firestorm of criticism. Even federal lawmakers got frustrated, introducing the Preserving Employee Wellness Programs Act in an effort to harmonize the Affordable Care Act (ACA), ADA, and GINA. Pursuant to the bill, employers would be explicitly permitted to provide wellness programs that offer a financial incentive to employees and their spouses to participate.

Facing criticism and a legislative proposal, the agency stepped up and (finally) released its own proposed regulations. Emphasizing that a permissible wellness program must be voluntary, the EEOC set forth several requirements in the Notice of Proposed Rulemaking (NPRM):

  • Intent of program. The goal of an employer wellness program must be the prevention of disease or the promotion of health. A permissible program must have “a reasonable chance of improving the health of, or preventing disease in, participating employees, and must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.”
  • Voluntary participation. Employers may not mandate participation in a program and may not take adverse action against employees that elect not to participate (by denying coverage under a group health plan or particular benefits of a group health plan, for example) or fail to meet a health outcome goal. “Additionally, an employer may not retaliate against, interfere with, coerce, intimidate, or threaten employees” in violation of the ADA by coercing employees to participate or threaten discipline if they do not, the EEOC added.
  • Information use. Notice that clearly explains what medical information will be obtained, how the medical information will be used, who will receive the medical information, and any restrictions on disclosure of the information must be provided to employees when the wellness program is part of a group health plan.
  • Incentive limits. A wellness program that is part of a group health plan, offers limited incentives, and includes disability-related questions or examinations is not per se impermissible, the EEOC said, when two conditions are satisfied: first, if the total allowable incentive offered by the employer under all programs does not exceed 30 percent of the total cost of employee-only coverage (mirroring the regs issued by the DOL, Treasury, and HHS), and second, if the medical information collected through the program is provided to a covered entity under the ADA in aggregate terms (not identifying specific individuals). “Incentives” include both financial and in-kind perks, the EEOC clarified, including time off or prizes.
  • HIPAA. Pursuant to the proposal, individually identifiable health information collected from or created about participants as part of a wellness program constitutes protected health information under the Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification Rules. Any such information may only be provided to a covered entity in aggregate terms that do not disclose the identity of specific individuals.
  • Other federal laws. The NPRM clarified that compliance with the ADA and the regulations does not relieve employers of the obligation to comply with other employment nondiscrimination laws. Even if a wellness program complies with the incentive limits, for example, the employer could still violate GINA, Title VII of the Civil Rights Act, the Equal Pay Act, or the Age Discrimination in Employment Act, depending on the terms of the program.
  • Accommodations. Employers must provide reasonable accommodations to enable employees with disabilities to participate and earn offered incentives. Materials for wellness programs may need to be provided in alternate format—such as Braille or large print—for an employee with vision impairment, or a sign language interpreter may be required for a deaf employee to participate in a class where attendance results in receipt of an incentive.

Currently open for public comment, the EEOC has requested feedback on the proposal with the possibility of other requirements for wellness programs.

For example, the agency wondered if employers should be required to offer similar incentives to individuals who choose not to disclose their medical information and provide a note from their doctor. And should the EEOC require that employees provide “prior, written, and knowing confirmation” that their participating in wellness programs is voluntary?

Comments will be accepted until June 19. The agency also provided a question and answer document on the NPRM as well as a Fact Sheet for Small Businesses.

To read the EEOC’s proposed regulations on employer wellness programs, click here.

To read the agency’s Q and A, click here.

To read the Fact Sheet for Small Businesses, click here.

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EEOC Settles First Transgender Discrimination Suit

Why it matters

One of the Equal Employment Opportunity Commission’s (EEOC) first two lawsuits seeking to hold an employer liable under Title VII of the Civil Rights Act for discrimination against a transgender employee has settled. Last fall, the agency charged an eye clinic in Florida with violations of the statute after an employee who previously presented as male began the transition to female. Coworkers “snickered” and “withdrew from social interactions” and the owner of the clinic terminated her not long after the employee revealed her plans, the EEOC alleged. These actions constituted discrimination and harassment based on “sex” under Title VII, the agency claimed. While the clinic did not admit fault, it reached a deal with the agency. In addition to a $150,000 payment and a neutral letter of reference for the former employee, the clinic agreed to revise its discrimination and harassment policies and update managerial and employee training to include gender stereotype discrimination. The litigation—coupled with a second suit filed against a Michigan funeral home featuring similar allegations—reiterates the EEOC’s intent to focus on “coverage of lesbian, gay, bisexual and transgender individuals” as part of its Strategic Enforcement Plan. “This historic settlement is significant,” David Lopez, EEOC General Counsel, said in a press release about the deal. “It not only is one of the first two lawsuits ever filed by the Commission alleging sex discrimination against a transgender individual, but it also solidifies the EEOC’s commitment to enforcing the rights of transgender employees secured by Title VII.”

Detailed discussion

In February 2011, Michael Branson began wearing feminine attire to work at the Lakeland Eye Clinic in Florida. When hired in July 2010, Branson presented as male. But when he began wearing feminine attire to work, including women’s makeup and clothing, Branson reported that coworkers “snickered, rolled their eyes, and withdrew from social interactions” in response to her changing appearance.

The owner of the clinic met with Branson in April and confronted her about her changing appearance. Branson informed him that she was undergoing a gender transition from male to female and would be legally changing her name from Michael to Brandi. After the meeting, the ostracism and derogatory comments by coworkers increased, Branson claimed.

Branson was terminated in June. Although she was told that her position was being eliminated and the division she worked in would be closed, the clinic hired a male employee who conformed to traditional male gender norms and kept the division operating.

The Equal Employment Opportunity Commission (EEOC) filed suit on Branson’s behalf in Florida federal court.

The eye clinic’s “decision to terminate Branson was motivated by sex-based considerations,” the agency claimed in the complaint. “Specifically, defendant terminated Branson because Branson is transgender, because of Branson’s transition from male to female, and/or because Branson did not conform to the defendant’s sex- or gender-based preferences, expectations, or stereotypes.”

Lakeland continued to maintain that no laws were violated but reached a settlement agreement with the EEOC to end the litigation.

Branson will receive a $150,000 payment ($75,000 representing back pay with the remaining $75,000 for other damages including emotional distress) and a neutral job reference. Any inquiries to Lakeland about Branson’s employment will include no mention of the charge of discrimination, the lawsuit, Branson’s gender transition, that her legal name used to be “Michael,” or the use of any male pronouns.

The employer also promised to revise and implement changes to its gender discrimination policy and training. Lakeland’s updated policy will clearly define prohibited conduct and specifically prohibit gender discrimination against all applicants and employees.

Harassment (from coworkers, customers, agents, and any others present at the facilities) as well as termination on the basis of transgender status or transition from one gender to another are banned, and the company agreed to take “immediate and appropriate corrective action” to any complaints.

Managers—including Lakeland’s owner and CEO—will be required to undergo an annual one hour of training that includes an explanation of the prohibition on discrimination against transgender/gender stereotype under Title VII and guidance on handling complaints; employees will partake in a similar training about prohibited conduct and their rights under Title VII.

Lakeland is also subject to reporting and monitoring requirements pursuant to the consent decree, which remains in effect for two years.

To read the complaint in EEOC v. Lakeland Eye Clinic, click here.

To read the consent decree, click here.

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When Does an Employer Need to File an Amended H-1B Petition?

Why it matters

Under what circumstances does an employer need to file an amended H-1B petition? A new precedential opinion from U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) sets forth an employer’s obligation to file an amended petition when a geographical change in worksite occurs. Regulation mandates that H-1B employers must file an amended petition if a “material change” occurs in the terms and conditions of employment of a foreign national beneficiary. In a new decision, the AAO clarified that a change to the geographical area in which an employee works constitutes a material change requiring the filing of an amended petition, basing its conclusion on the principle of worker protection. Any employer with H-1B employees should ensure compliance with the decision and file an amended petition if the worker is relocated to a new worksite.

Detailed discussion

Simeio Solutions LLC filed a Petition for a Nonimmigrant Worker (Form I-129) to classify a beneficiary as an H-1B temporary nonimmigrant worker pursuant to the Immigration and Nationality Act. Included in the petition: the necessary Department of Labor (DOL) Labor Condition Application for Nonimmigrant Workers (LCA).

The company—which provides information technology services—stated that the beneficiary maintained nonimmigrant status as an F-1 student and was employed by Simeio for post-degree optional practical training.

The Form I-129, the LCA, and an accompanying letter of support all attested that the beneficiary would be employed at a Simeio facility in Long Beach, California, working on an in-house project for a specific client with an annual salary of $50,232. The company did not include an itinerary, nor did it list other worksites. The petition was approved.

Two months later, the beneficiary left the United States and applied for an H-1B visa at the U.S. Embassy in New Delhi, India, based on the approved petition. When contacted by the Department of State, Simeio indicated that the beneficiary was providing services to clients not previously identified in the approved petition. The Embassy then returned the petition for review to the California Service Center Director (Director).

The U.S. Citizenship and Immigration Services (USCIS) officers conducted a site visit at the Long Beach facility where the beneficiary was supposed to be working and found that the address had been abandoned two months after the start date of the beneficiary’s H-1B employment. Further investigation revealed that the beneficiary was assigned to Simeio’s Los Angeles office.

The Director responded with a notice of intent to revoke the approval of the petition. In response, the company submitted a new LCA that provided two worksites for the beneficiary: Camarillo, California, and Hoboken, New Jersey.

These changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition, the Director concluded. Because Simeio failed to file an amended petition with the LCA, the Director revoked the nonimmigrant visa petition.

The USCIS Administrative Appeals Office (AAO) affirmed, following a trail of regulations.

Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant worker as “an alien … who is coming temporarily to the United States to perform services … in a specialty occupation described in section 214(i)(1) … who meets the requirements for the occupation specified in section 214(i)(2) … and with respect to whom the Secretary of Labor determines and certifies to the [Secretary of Homeland Security] that the intending employer has filed with the Secretary [of Labor] an application under section 212(n)(1).”

The Act also requires an employer of an H-1B worker to pay 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, pursuant to Section 212(n)(1)(A)(i).

“Implemented through the LCA certification process, section 212(n)(1) is intended to protect United States workers’ wages by eliminating economic incentives or advantages in hiring temporary foreign workers,” the AAO explained. To promote these worker protection goals, a prospective employer must file an LCA and receive DOL certification before submitting an H-1B petition to the USCIS.

“In the event of a material change to the terms and conditions of employment specified in the original petition, the petitioner must file an amended or new petition with USCIS with a corresponding LCA,” the AAO said, and “immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility” for H-1B status,” by filing an amended petition.

Only one question remained: Does a change in the geographical location of employment of a beneficiary affect the eligibility of H-1B status?

Yes, the AAO said. And because such a change may affect eligibility—requiring a new LCA to be certified by the DOL—it constitutes a material change in the terms and conditions of employment necessitating an amended or new H-1B petition with the corresponding LCA.

Simeio neglected to file the necessary paperwork, the AAO wrote, and affirmed the Director’s decision to revoke the petition.

Section 212(n) of the Act ties the prevailing wage to the “area of employment,” and therefore “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 Form I-129 visa petition, since such a change may affect eligibility under 101(a)(15)(H) of the Act,” the AAO said. “If, for example, the prevailing wage is higher at the new place of employment, the beneficiary’s eligibility for continued employment in H-1B status will depend on whether his or her wage for the work performed at the new location will be sufficient. Fundamentally, for an LCA to be effective and correspond to an H-1B petition, it must specify the beneficiary’s place(s) of employment.”

Long Beach, California, was not the same as Camarillo, California or Hoboken, New Jersey, the AAO noted, and the required salary for the two latter locations was approximately $9,000 higher than the first—meaning that the geographical change in the beneficiary’s location did affect his eligibility under Section 101(a)(15)(H).

“Having materially changed the beneficiary’s authorized place of employment to geographical areas not covered by the original LCA, the petitioner was required to immediately notify USCIS and file an amended or new H-1B petition, along with a corresponding LCA certified by DOL, with both documents indicating the relevant change,” the AAO wrote. “By 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.”

The AAO added in a footnote that the decision “clarifies, but does not depart from, the agency’s past policy pronouncements,” and that to “the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded.”

To read the decision in Matter of Simeio Solutions, LLC, click here.

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