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NPZ Immigration Law Blog

Friday, June 5, 2015

USCIS Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision

On April 9, 2015, USCIS' Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that the employers must file amended H-1B petitions when a new Labor Condition Application (LCA) for Nonimmigrant Workers is required due to a change in the H-1B worker's worksite location. Specifically, the decision stated:

1. When H-1B employees change their place of employment to a worksite location that requires employers to certify a new LCA to the Department of Homeland Security, this change may affect the employee's eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

2. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.

When H-1B Employer Must File an Amended Petition

The employer must file an amended H-1B petition if H-1B employee's work location has changed or is going to be changed to a worksite location outside of the Metropolitan Statistical Area (MSA) or an "area of intended employment" (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

Note that once the employer submits an amended petition, the H-1B employee can immediately begin to work at the new location. The employer need not wait for a final decision on the amended petition for the H-1B employee to start work at the new location.

When H-1B Employer Do NOT Need to File an Amended Petition

• A move within an MSA: If H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, the H-1B employer do not need to file an amended H-1B petition. However, the employer must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but the employer would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.

• Short term Placements: Under certain circumstances, the employer may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, the employer do not need to file an amended H-1B petition.

• Non-worksite Locations: If the H-1B employee is only going to a non-worksite location, the employer do not need to file an amended H-1B petition. A location is considered to be "non-worksite" if:

o The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
o The H-1B employees spend little time at any one location; or
o The job is "peripatetic in nature," such as situations where their primary job is at one location but they occasionally travel for short periods to other locations "on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations)." See 20 CFR 655.715.

Filing Amended H-1B Petitions


• If H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, the employer has 90 days from the date of this alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, the employer needs to submit an amended petition by August 19, 2015, if it did not submit an amended petition for an H-1B worker who moved worksite locations before May 21, 2015.

• If H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against the employer or their H-1B employees if the employer, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, the employer must now file an amended petition for these H-1B employees by August 19, 2015.

• If the employer fails to file an amended petition for these employees by August 19, 2015, the employer will be deemed out of compliance with USCIS regulation and policy, and, thus subject to adverse action. Similarly, their H-1B employees would be deemed as not maintaining their nonimmigrant status and would also be subject to adverse action.

• If employer's amended H-1B petition is denied, but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.

If employer's previously-filed amended H-1B petition is still pending, the employer may still file another amended petition to allow its H-1B employee to change worksite locations immediately upon latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary's status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. To the extent possible, the employer should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.


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