In May 2015, in response to the immigration service's Administrative Appeals Office decision in Matter of Simeio Solutions, LLC, USCIS issued draft guidance addressing the need for employers to file amended H-1B petitions when there was a change in the foreign national employee's worksite. Essentially, the immigration service considers there to be a "material change," thus triggering the need for the filing of an amended petition, when an H-1B employee is going to their place of employment to a new worksite that was not listed in the employer's initial petition and accompanying Labor Condition Application (LCA).
In this draft guidance, USCIS indicated that this new H-1B amendment approach was to be applied retroactively to location changes made prior to the Simeio decision and prior to the issuance of the guidance. A deadline of August 19, 2015 was given to employers before which to file all necessary amended petitions. This was met with significant criticism from employers and their representatives as to the short time frame and the significant costs involved to come into compliance, along with the unfairness of its retroactive application.
USCIS has now released its final guidance on when to file an amended or new H-1B petition after Matter of Simeio Solutions, LLC. Significantly, for relocations occurring after April 9 (the date of the Simeio decision) but prior to August 19, employers now have until January 15, 2016 to file the amended petitions. Additionally, for location changes that occurred on or before April 9, the immigration service indicates that it generally will not go after or take adverse actions against an employer who do not file amended petitions. And for relocations occurring on or after August 19, employers must file amended petitions before the move takes place, with limited exceptions that we discussed in our earlier client alert.
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.
