H-1B AMENDMENTS POST-SIMEIO SOLUTIONS: WHY CIS SHOULD CONSIDER TAKING OFF THE RETROACTIVITY ASPECT FROM THE “DRAFT” GUIDANCE?

 

As many are aware, putting an end to the confusion that prevailed among Immigration Practitioners for almost two decades, the Administrative Appeals Office (AAO), through a Precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), clarified that an amended H-1B Petition, with the corresponding LCA, is required to be submitted to United States Citizenship and Immigration Services (USCIS) when there is a material change in the terms and conditions of employment.

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.”

Further, on June 9, 2015, USCIS Director Leon Rodriguez, at the Council for Global Immigration’s 2015 Symposium, told a group of immigration and HR professionals that the USCIS understands that the August 19, 2015, deadline to file potentially thousands of amended petitions “is a problem” and employers may soon get relief. He further stated that the agency is considering issuing a statement “very soon” that employers will only have to abide by the Matter of Simeio Solutions decision going forward and not retroactively. Mr. Rodriguez added that: “USCIS is working to build real protection, so that those of you [employers] who have made changes in relying on inconsistent [USCIS] pronouncements will have an adequate level of protection and comfort to move forward without necessarily needing to make an amended filing.” He also said that guidance related to the matter would be sharpened and intimated that the deadline may be extended.

The real questions to ask and analyze are: Why the agency wants take off the retroactivity aspect from the draft guidance which was issued earlier as a guidance; and Whether it is just a smokescreen to cover the wrong guidance which CIS should not have issued in the first place?

The basic tenets of administrative law suggest that administrative agencies such as USCIS may make both prospective and retroactive policies because they are vested with quasi-legislative and quasi-adjudica­tory powers. In deciding whether to grant or deny retroactive force to a newly adopted administrative rule or guidance, reviewing courts look to the standard established by the Supreme Court in SEC v. Chenery Corp (Chenery II)[1]. The standard laid down in Chenery II specifically stated[2]:

“….[R]etroactivity must be balanced against the mischief of produc¬≠ing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard,