When Should Employers File Amended H-1B Petitions After Simeio? USCIS Issues Draft Guidance

U.S. Citizenship and Immigration Services (USCIS) recently issued draft guidance following its Administrative Appeals Office (AAO) precedent decision, Matter of Simeio Solutions, LLC, which held that an employer must file an amended H-1B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 worksite location. Specifically, the decision stated:

1. When H-1B employees change their place of employment to a worksite location that requires an employer to certify a new LCA to the Department of Homeland Security, this change may affect the employees’ eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 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.

USCIS noted that this precedent decision represents the agency’s position that employers must file an amended petition before placing an H-1B employee at a new worksite. USCIS said it will accept comments on the draft guidance for a limited period of time.

When To File or Not File:

Employers must file an amended H-1B petition if an H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or “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.

Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. The employer does not have to wait for a final decision on the amended petition for the H-1B employee to start work at the new location.

USCIS said employers do not need to file an amended petition in the following situations:

• A move within an MSA:
  If the 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 employer does 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. USCIS said 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 does 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 does not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
  • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  • The H-1B employees spend little time at any one location; or
  • The job is “peripatetic in nature,” such as situations where the primary job is at one location but the H-1B employees 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 the H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, the employer has 90 days from May 21, 2015, to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA from that submitted with the original H-1B petition. Therefore, if the employer has not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, it has until August 19, 2015, to file an amended petition.
• If the H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS said it will not take adverse action against the employer or employees if the employer, 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 by May 21, 2015. However, as noted above, the employer must now file an amended petition for these H-1B employees by August 19, 2015. If the employer does not file an amended petition for these employees by August 19, 2015, it will be out of compliance with USCIS regulation and policy and thus subject to adverse action, USCIS said. Similarly, the H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
• If the amended H-1B petition is denied but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
• If the previously filed amended H-1B petition is still pending, the employer may still file another amended petition to allow the H-1B employee to change worksite locations immediately upon the latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. If the H-1B nonimmigrant beneficiary’s status has expired 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. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005), for similar instructions about portability petitions (link below).

USCIS noted that to the extent possible, the employer should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.

• The 2005 Aytes memorandum discussed above is available as PDF.
• The draft guidance is available here.
• Matter of Simeio Solutions, LLC, is available as PDF.