Make a Payment 
<a href="https://secure.blueoctane.net/forms/E8TLX753GRBB">Click Here To Load This Formexperts.com Form</a>
Share

NPZ Immigration Law Blog

Wednesday, July 29, 2015

FROM “MUST” TO “MAY” ON RETROACTIVITY ASPECT: USCIS ISSUES FINAL GUIDANCE ON WHEN TO SUBMIT H-1B AMENDED PETITION.

As discussed in our recently co-authored Article, H-1B AMENDMENTS POST-SIMEIO SOLUTIONS: WHY CIS SHOULD CONSIDER TAKING OFF THE RETROACTIVITY ASPECT FROM THE “DRAFT” GUIDANCE, United States Citizenship and Immigration Services (USCIS) in its revised Final Guidance, that came out on July 21, 2015, suggests that the Simeio Solutions decision[1] will not be applied retroactively, which is a significant departure from the USCIS’ Draft Guidance.

As discussed in our above-mentioned article, in Simeio Solutions, the AAO specifically stated that when H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application (LCA) for nonimmigrant workers 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.

Because the decision was not very clear as to whether the AAO only referred to a move outside the Metropolitan Statistical Area (MSA), the DHS Ombudsman call on April 30, 2015, clarified that amended petitions will be required only for movement of H-1B workers outside the MSA listed on the LCA. Then, just when the new changes regarding H-1B amendments started to sink-in, came the surprise. On May 21, 2015, USCIS issued guidance instructing employers to submit an amended petitions for employees who changed worksite locations prior to the issuance of Simeio Solutions decision.

Specifically, employers were asked to submit amended H-1B petition(s) if they, 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. The employers were asked to submit such amended petitions by August 19, 2015. Six days later, on May 27, 2015, USCIS updated its guidance to reflect that the guidance was in a “draft” form, and that comments would be accepted “for a limited period of time.”

USCIS’ final guidance provides much needed relief to the companies, especially the technology companies, employing considerable amount of workforce in the United States on H-1B visas as the cost of filing amended H-1B petitions on behalf of their employees prior to the issuance of Simeio Solutions decision could have imposed significant burden in terms of cost, time and manpower.

So, how does the new guidance helps the H-1B employers, and when they are required to submit H-1B petitions. As per the new memo, if an H-1B worker moved to a new location not covered by the existing petition prior to or on April 9, 2015, the date on which Simeio Solutions decision was published, the “…USCIS will generally not pursue new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition.” In simple language, an H-1B amended petition involving a location change outside of an MSA would be required if the change happened after April 9, 2015. Note that this memo will not protect employers if adverse action was initiated prior to July 21, 2015.

Further, this memo provide a Safe Harbor Period, for all moves requiring an H-1B amended petition, which happened between April 9, 2015, and August 19, 2015. If any move happened during this period then petitioning employers must submit H-1B amended petition by January 15, 2016. Additionally, any change in place of employment (outside the MSA listed on the LCA) after August 19, 2015, would require an amended H-1B Petition. For quick reference, here is a snapshot of when to submit H-1B amended petitions.

 

Date of Employee(S) Movement Outside The MSA Listed on LCA.

 

What Action Needs to be Taken?

On or before April 9, 2015.

No amended H-1B petition required.

On or before April 9, 2015.

Must submit H-1B amended petition by January 15, 2016.

After August 19, 2015.

Must submit H-1B amended petition.

 

The revised final guidance reconfirmed that an amended H-1B petition is not required if the geographical move is within the MSA. However, the petitioner is required to post the original LCA at the new work location. Similarly, an amended H-1B petition is not required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration at a location not listed on the LCA. Further, H-1B amended petition need not be submitted to USCIS for short-term placements of up to 30 days, or in some case up to 60 days (where employee is still based at “home” worksite).

Last but not the least; the revised final guidance confirms that if an employer’s amended H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition.



[1] Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).


Archived Posts

2017
May
April
Will the U.S. Extend Temporary Protected Status for Eligible Haitians?
Boletim do Departamento de Estado dos EUA para Maio de 2017
DOS UPDATE: VISA BULLETIN FOR MAY 2017
SPIRITUAL ENLIGHTENMENT AND U.S. IMMIGRATION: Understanding the Religious Visa (R Visa).
DHS Announces Launch of new Office for Victims of Illegal Immigrant Crime
Mudança recente no credenciamento de escolas e faculdades nos EUA afeta vistos de alguns estudantes
USCIS UPDATE: Certain Students Applying for English Language Study and 24-month STEM OPT Extension Programs Affected by the ACICS Loss of Accreditation
H-1B GÖÇMEN OLMAYAN ÇALIŞMA VİZESİ GÜNCELLEMESİ: USCIS (Amerika Vatandaşlık ve Göçmenlik Ofisi), 2018 Yılı H-1B Cap Rastlantısal Seçim Sürecini Tamamladı
USCIS, Yeniden Tasarlanmış Yeşil Kartlar ve Çalışma İzin Belgelerini Yayımlıyor
GOVERNO DOS EUA LANÇA NOVAS VERSÕES DO GREEN CARD E DO DOCUMENTO DE AUTORIZAÇÃO DE TRABALHO
ATUALIZAÇÃO SOBRE O VISTO DE TRABALHO H-1B: USCIS conclui processo de seleção via loteria para o ano fiscal de 2018
Esclarecimentos sobre os procedimentos de deportação
USCIS Reminds Beneficiaries of Temporary Protected Status for Guinea, Liberia, and Sierra Leone of May 21 Termination
USCIS Will Issue Redesigned Green Cards and Employment Authorization Documents
H-1B NONIMMIGRANT WORK VISA UPDATE: USCIS Completes the H-1B Cap Random Selection Process for FY 2018
Immigration Arrests Double in Just 11 Years
THERE HAS BEEN A RECENT INCREASE IN IMMIGRATION ENFORCEMENT ACTIONS: What Defenses Are Available to Persons Facing Deportation?
Alvos das ações do ICE
o Departamento do Trabalho dos EUA, por meio da Divisão de Salário e Horas (WHD), continua promovendo auditorias e investigações relacionadas ao visto H-1B
Barreiras de três e dez anos: Como novas regras ampliam elegibilidade para pedido de perdao
O NPZ LAW GROUP CONTINUA A INCENTIVAR QUE EMPREGADORES QUE SOLICITAM OS VISTOS H-1B E L-1 ENTENDAM AS VISITAS AO LOCAL DE TRABALHO FEITAS PELO FDNS REFERENTES AOS VISTOS H-1B E L-1
H-1B NONIMMIGRANT WORK VISA UPDATE: With a Looming Cloud of Anticipated Investigations, Audits and Site Visits, USCIS Reaches FY 2017-2018 H-1B Cap.
USCIS ALERT: BATTLING FRAUD AND ABUSE IN THE H-1B VISA PROGRAM.
WHAT IF MY CASE DID NOT GET CHOSEN IN THE H-1B LOTTERY: EXPLORING WORK VISA OPTIONS BEYOND THE H-1B CAP [i] (PART VII of an VIII Part Series)
Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate Against U.S. Workers
March
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
H-1B SEASON IS UPON US . . . WILL THIS YEAR'S ECONOMY BRING A LOTTERY? PLANNING FOR THE H-1B VISA SEASON MAY BE THE KEY TO BEING ABLE TO CONTINUE YOUR WORK AUTHORIZED STATUS IN THE U.S.
THE NEW EXPRESS ENTRY SYSTEM EXPLAINED
"Know Before You Go": NPZ Law Group Helps Ease The Stress of Holiday Travel For Certain Foreign Nationals.
5 Cosas que se deben saber sobre cómo las acciones del Presidente Obama impactarán a Inmigrantes Indocumentados.
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte I)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte II)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte III)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte IV)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte V)
Acción Ejecutiva de Responsabilidad de Inmigración fue anunciada por el presidente Obama. ¿Es usted o alguien que usted conoce un Beneficiario? (Parte VI)
EL RECIENTE ANUNCIO DEL PRESIDENTE OBAMA SOBRE LA RESPONSABILIDAD INMIGRACIÓN PRESENTA MUCHOS BENEFICIOS PARA MUCHAS COMUNIDADES DE INMIGRANTES!
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part VI)
PRESIDENT OBAMA'S RECENT ANNOUNCEMENT ABOUT IMMIGRATION ACCOUNTABILITY PRESENTS MANY BENEFITS FOR MANY IMMIGRANT COMMUNITIES!
November
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part IV)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part V)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part I)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part II)
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part III) Changes to Provisional Waivers and "Extreme Hardship Definition.
Immigration Accountability Executive Action Was Announced By President Obama. Are You or Someone You Know a Beneficiary? (Part IV)
5 Things to know about how President Obama's Actions Impacts Undocumented Immigrants.
Programa de Refugiados y de Admisión Condicional para menores de edad de El Salvador, Guatemala y Honduras con padres legalmente presentes en los Estados Unidos.
ÚLTIMAS NOTICIAS DE INMIGRACIÓN EN LOS ESTADOS UNIDOS: Reforma Integral de Inmigración.
USCIS Expands the Definition of "Mother" and "Parent" to Include Gestational Mothers Using Assisted Reproductive Technogy (ART)
U.S. IMMIGRATION NEWS FLASH: President Obama Announces Administrative Relief for Immigrants in the U.S.
In-Country Refugee/Parole Program for Minors in El Salvador, Guatemala, and Honduras With Parents Lawfully Present in the United States
October
September
August
July
June
May
April
March
February
January
2013
December
November
October
September
August
July
June
May
April
March
February
January


National in scope, the business immigration law firm of NPZ Law Group represents clients from throughout the United States and around world. Regionally, our attorneys remain committed to serving the immigration needs of businesses in the Tri-state area and the Hudson Valley, including residents of Ridgewood, Newark, and Jersey City, Burlington County, Bergen County, Camden County, Cumberland County, Essex County, Hudson County, Mercer County, Middlesex County, Monmouth County, Morris County, Passaic County, Salem County, Union County, northern New Jersey, southern New Jersey, central New Jersey, NJ; New York City, Rockland County, Orange County, Westchester County, Kings County, Sullivan County, Ulster County, New York, NY; Chicago, Illinois, IL; and Toronto and Montreal, Canada. Our nationwide practice focused on quality legal representation and personal service.



© 2017 NPZ Law Group | Disclaimer
487 Goffle Road , Ridgewood, NJ 07450
| Phone: 866-599-3625

About | Attorneys | Types of Visas | Resources | Testimonials | Types of Immigration Law | Services

Law Firm Website Design by
Amicus Creative