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Impact of Matter of Simeio Solutions, LLC on H-1B Cases

By Keshab Raj Seadie | July 22, 2015

H-1B Visa Cases
Immigration Lawyer in NYC

stock When to file an H-1B Amendment when there is a change in job site:

Must File Amended Petition on or after August 19, 2015

If the change in the place of employment (not covered by an existing, approved H-1B petition) occurs on or after August 19, 2015, then the petitioner must file an amended or new petition before the employee begins working at the new location.

Must File Amended Petition by January 15, 2016

After April 9, 2015 but prior to August 19, 2015, the petitioner must file an amended or new petition by January 15, 2016. USCIS will consider filings prior to the deadline for this safe harbor period to be timely for purposes of the regulation. However, if the petitioner does not file the amended or new petition within the time permitted, the petitioner will be out of compliance with DHS regulations. The petitioner’s current Form I-129, Petition for a Nonimmigrant Worker, H-1B petition approval will be subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.

May File by January 15, 2016 but Need no Filing

If a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition)… Then… On or before April 9, 2015 The petitioner may choose to file an amended or new petition by January 15, 2016. Such requests to change an H-1B employee’s place of employment will be deemed timely. Even if the petitioner does not file the amended or new petition by this date, USCIS will generally not pursue new revocations or denials based upon failure to file an amended or new petition.

On July 21st, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that provided details about how the precedent setting case of Matter of Simeio Solutions, LLC affects individuals in H-1B status. This policy is effective immediately.

USCIS’ Administrative Appeals Office (AAO) decision on April 9, 2015 determined that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Worker (LCA) is required due to a change in the location of the H-1B worker’s worksite. H-1B petitioners must file an amended or new petition before placing an H-1B employee at the new worksite.

This is relevant if the worksite of the H-1B employee is changing to a geographic area requiring a corresponding LCA. It must be certified to USCIS even if U.S. Department of Labor has already certified a new LCA and posted it at the new work location. The H-1B employee may begin work at the new location after filing. It is not necessary to wait for a final decision.

The petitioner does not need to file an amended petition if the move is to a new job location within the same area of intended employment. A new LCA is not generally required. However, the petitioner must still post the original LCA at the new work location within the same area of intended employment.

If the H-1B employee is going to another worksite for a short-term placement of up to 30 days (60 in some cases), a new LCA is not required. Also, if H-1B employees are going to a non-worksite location for a seminar, conference or developmental activity, no action is necessary. Also, brief visits to other locations are acceptable.

If an H-1B employee moved to a new worksite not covered by an existing, approved H-1B petition on or before April 9, 2015, the petitioner may choose to file an amended or new petition by January 15, 2016. If the petitioner does not file the amended or new petition by that date, USCIS will most likely not pursue action. Notices of intent to revoke, requests for evidence, notices of intent to deny and denials issues prior to July 21, 2015 remain in effect and petitioner must comply with them.

Employers should consult with counsel on matters of compliance as it will be strictly enforced. If a petitioner doesn’t meet the January 15, 2016 deadline for filing an amended or new petition for an H-1B employee who moved to a new place of employment (not covered by the existing, approved H-1B petition) during the time period of April 9, 2015 to August 19, 2015, the petitioner will be out of compliance and the employee will not be in active nonimmigrant status. Both will be subject to adverse actions. If the change in the place of employment takes place on or after August 19, 2015, the petitioner must file an amended or new petition before the employee begins working at the new location.

If the petitioner’s amended or new H-1B petition is denied, the H-1B employee may return to the original place of employment if the original petition is still valid.

If the H-1B employee needs to travel while the amended or new H-1B petition is pending, please seek guidance on admission procedures for nonimmigrants.