When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC

Below is a summary based on the July 21 2105 Memo (Matter of Simeio) on when and when not to file for an H1B amendment. Previously the memo issued was set to place a higher burden on the H1B employers. In fact unlike the previous memo where USCIS wanted the Matter of Simeio to apply retroactively, they now would now not penalize employers who did not prior to April 19 moved their employees to another location and did not file for an H1B amendment when it was allegedly required based on the Simeio case. As such only cases filed after April 19, 2015 will be subject to this rule. We have tried to re-write the July 21 2015 memo in simpler terms. Therefore, this memo in now way protect employers in the future. It is recommended to closely follow with your cases when you are moving from one location to another. For more information,please feel free to email us [email protected] or call us at 510 742 5887

Summary of July 21 2015 USCIS memo.

On April 9, 2015, USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC (Simeio), which held that an H-1B employer must file an amended or new H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s place of employment. The decision is binding on all USCIS employees. Specifically, the decision stated:

1. A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to the Department of Homeland Security (DHS) with respect to that beneficiary may affect 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.

In effect, this decision means that H-1B petitioners are required to file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition. Thus, a petitioner/employer must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment – such as from one office in San Francisco to another office in the city – to an area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. The petitioner, however, does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment. Rather, upon a properly filed amended or new H-1B, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied.

When a petitioner does NOT need to file an amended petition.

If the H-1B employee is merely moving to a new location, without changes to the terms and conditions of the employment that might affect the H-1B eligibility, the petitioner does not need to file an amended petition. See INA §212(n)(4); 20 CFR 655.734. Note, however, that the petitioner must still post the original in the LCA in the new location of employment, regardless of whether only one H-1B employee moves to another location or the entire office moves.

The employer also may not have to file a new or amended petition if the H-1B employee is merely placed in a new worksite for a short period of up to 30 days, or 60 days if the employee is still based at the “home” worksite and there are no material changes in the terms and conditions of the employment.

Further, if H-1B employees are only going to a non-worksite location, without material changes in the employment, the petitioner does not need to file an amended or new H-1B petition. A location is deemed a “non-worksite” if: The H-1B employees are going to the location to participate in certain activities, such as management conferences and staff seminars; the H-1B employees do not spend much time at any one location; or the employment is “peripatetic in nature;” that is, their employment is primarily 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 5 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.

According to the Simeio decision, this interpretation of the law by USCIS only clarifies the existing regulations and policies. In order to accommodate petitioners in complying with the decision, USCIS has stated that if the H-1B employee moved to a new employment location not covered by an approved petition on or before April 9, 2015 – the date of publication of the Simeio decision – USCIS will not impose new penalties based on the failure to file a new or amended petition. If the employer wants to file a new or amended petition to request a new location of employment occurring on or before April 9, 2015, they may do so by January 15, 2016 and still be deemed timely in their petition. If, however, a petitioner does not file a new or amended petition by January 15, 2016 for an employee who changes job sites between April 9, 2015 and August 19, 2015, the petitioner will be considered out of compliance with Department of Homeland Security regulations and USCIS’ interpretation of the law, and therefore will be subject to adverse action, and the employee will no longer be in H-1B status. If a change in employment location, which is not covered by an existing and approved petition, occurs on or after August 19, 2015, the petitioner must file an amended or new petition before the employee begins work at the new place of employment.

It should be understood, however, that according to the USCIS interpretation, if a petitioner’s amended or new H-1B petition is denied, but the original petition is still valid, the H-1B employee may return to the place of employment covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original place of employment.

If you are an employer or employee under an H-1B, or are interested in obtaining H-1B status, and have questions about this new development in the law, please contact us. We can navigate the new law and help ensure that you and your employees are compliant with the USCIS interpretation and DHS regulations.