USCIS Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision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