USCIS confirms employers must file amended H-1B petitions for worksite changes before Simeio ruling

22 May 15

UNITED STATES

U.S. Citizenship and Immigration Services has released guidance clarifying last month’s precedent decision by the Administrative Appeals Office finding that employers must file an amended H-1B petition when an H-1B employee changes worksite locations and a new Labor Condition Application is required.

Significantly, the guidance confirms that the ruling, Matter of Simeio Solutions, applies to worksite changes that occurred before the April 9 ruling. Therefore, employers whose H-1B employees changed locations before the ruling are required to file amended H-1B petitions. Employers who have not filed amended H-1B petitions for those employees must file no later than Aug. 19.

Additionally, employers who have not yet filed amended H-1B petitions for workplace location changes that occurred after the ruling but before May 21 will also have until April 19 to file an amended petition.

Failure to file by that date will result in both the employer and H-1B employee being out of compliance and subject to adverse action.

The guidance provides other clarifications:

  • Once an amended petition has been filed, the H-1B employee may immediately begin work at the new location, and need not wait for a final decision from USCIS.
  • Employers do not need to file an amended H-1B petition for H-1B employees who move to a new job site within the same metropolitan statistical area or area of intended employment, or who are placed at a new job site for short-term placements of up to 30 days (and in some cases 60 days where the employee is still based at the original location), or who are placed at a non-worksite location. “Non-worksite” is defined as a site where the employee participates in employee-development activities, or where the employee spends little time or travels to only occasionally from the primary job site.
  • Employers may file another amended H-1B petition while an amended H-1B petition is pending as long as every amended petition meets the requirements for the H-1B classification and any requests for extensions of stay. If the H-1B employee’s status expires 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.
  • If an amended H-1B petition is denied, but the original petition remains valid, an employer may return the H-1B employee to the old worksite covered by the original petition as long as the employee is in valid status at the original worksite.

The case is Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015).

BAL Analysis: Employers who relied in good faith on existing agency correspondence before the decision and did not file amended petitions for H-1B workers who changed locations before April 9 will not face adverse action, but are now on notice that they must file amended petitions for H-1B worksite changes no later than Aug. 19 to be in compliance.

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