Mark A Ivener, A Law Corporation

USCIS Issues Final Guidance on When To File Amended or New H-1B Petitions After Matter of Simeio Solutions

U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, on when to file an amended or new H-1B petition after the precedent decision in Matter of Simeio Solutions, LLC (Simeio).

USCIS said that Simeio, issued on April 9, 2015, represents the USCIS position that H-1B petitioners must file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition. Specifically, an H-1B employer must file a new H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s place of employment.

On May 21, 2015, USCIS issued draft guidance and solicited public comment on the implementation of Simeio. After considering the feedback submitted, USCIS issued the new guidance, which is effective as of July 21. USCIS noted that although the final guidance responds to many of the comments received, some suggestions and inquiries were outside the scope of Simeio. USCIS said it will consider addressing those remaining questions, as necessary, in the near future.

In general, USCIS said, a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.

The memo also notes when a petitioner does not need to file an amended or new H-1B petition. If a petitioner’s H-1B employee is moving to a new job location within the same area of intended employment, for example, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. The petitioner must still post the original LCA in the new work location within the same area of intended employment.

Similarly, with respect to short-term placements under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite) without obtaining a new LCA or having to file an amended or new H-1B petition.

Also, if an H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered “non-worksite” if: (1) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference or staff seminar; (2) the H-1B employee spends little time at any one location; or (3) the job is “peripatetic in nature,” such as in a situation where the employee’s job is primarily at one location but he or she occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations.”

USCIS said that it will exercise discretion in several ways, specified in the memorandum, to accommodate petitioners who need to come into compliance with Simeio. For example, the memo noted that if an employer transferred an H-1B employee to a new location on or before April 9, the date of the Simeio decision, the agency generally will not pursue new adverse actions, even if the employer does not file an amended petition.

The memo also specifies certain circumstances in which USCIS will pursue new adverse actions against employers or preserve adverse actions already begun.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.