On July 21, 2015, USCIS issued final guidance on when to file a new or amended H-1B petition after the Matter of Simeio Solutions, LLC decision.1 ( Click here to review our discussion of the Simeio decision). This USCIS final guidance -- which is intended to assist employers with complying with the Simeio decision -- provides the following directives:
When an Amended H-1B Is Required:
An Amended H-1B must be filed with USCIS when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required because the new and/or additional place of employment is in a different Metropolitan Statistical Area (MSA, also referred to as the "area of intended employment"). The employee can begin working at the new site as soon as the petition is filed with USCIS. The H-1B does not need to be approved first.
When an Amended H-1B Is Not required:
An employer does not need to file an amended H-1B when the H-1B employee is moving to a new job location within the same area of intended employment or MSA. However, the employer must post the previously certified LCA at the new work location.
Exceptions:
The exceptions for a short term placement at a new worksite, and the exception for peripatetic i.e. short term travel to non-worksite locations still apply.
Changes in Place of Employment Prior to April 9, 2015:
The guidance explains that USCIS generally will not pursue new adverse actions (e.g., denials or revocations) against an employer who fails to file an amended or new petition after July 21, 2015, if the H-1B employee had moved to a new area of employment (not covered by an existing, approved H-1B petition) on or before April 9, 2015 (i.e., the date of publication of Matter of Simeio Solutions, LLC). The guidance further explains that "USCIS will, however, preserve adverse actions already commenced or completed prior to July 21, 2015 and will pursue new adverse actions if other violations are determined to have occurred."
Safe Harbor Period:
An employer may file an amended or new H-1B petition to request a change in the place of employment that occurred on or before the Simeio decision by making such filing by January 15, 2016. USCIS will consider such filings during this safe harbor period to be timely for purposes of compliance with the regulation.
Changes in Place of Employment After April 9, 2015 But Before August 19, 2015:
If by January 15, 2016 an employer fails to file an amended or new petition for an H-1B employee who moved to a new place of employment after April 9, 2015 but before August 19, 2015, the petitioner will be out of compliance with DHS regulations and the USCIS interpretation of the law, and thus subject to adverse action. Similarly, the petitioner's H-1B employee will not be maintaining nonimmigrant status and will also be subject to adverse action.
Changes in Place of Employment After August 19, 2015:
If the change in the place of employment occurs on or after August 19, 2015, then the employer must file an amended or new petition before the employee begins working at the new location.
What If the Amended Petition is Denied?
The original petition will still be valid, and the employee can return to the place of employment covered in the original petition as long as the employee maintains valid nonimmigrant status at that location. The guidance implies that the return, upon the denial of the amendment, to the previous yet still valid H-B site will allow the employee to maintain lawful status. It is important to note that the timing of when this must occur is not discussed.
What If an Amended or New H-1B Petition is Already Pending?
The employer may file another amended or new petition to allow the H-1B employee to change worksite locations immediately upon the latest filing.
Footnote
1 26 I&N Dec. 542 (AAO 2015).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
