U.S. Citizenship and Immigration Services (USCIS) has issued highly anticipated final guidance on H-1B worksite location changes in the wake of the Administrative Appeals Office’s (AAO) April 9, 2015 precedent decision, Matter of Simeio Solutions. For relocations occurring after April 9 but prior to August 19, employers will have until January 15, 2016 to file amended petitions – five months longer than the initial deadline of August 19. The agency also said that it will “generally not pursue new adverse actions (e.g., denials or revocations)” against employers that do not file amended petitions based on location changes that occurred before the Simeio decision was issued, i.e., relocations that occurred on or before April 9, but gave employers the option of filing amendments by the new deadline. For relocations occurring on or after August 19, employers must file an amended petition before the move takes place, with only very limited exceptions discussed below.
The Simeio Decision and the Initial USCIS Guidance
Under long-standing requirements, an amended H-1B petition is required whenever there is a material change in an H-1B worker’s employment. Addressing worksite location changes only, the USCIS AAO ruled in Simeio that a material change occurs when an H-1B employee moves to a new worksite that was not specified in the employer’s initial petition and accompanying labor condition application (LCA). In a draft guidance issued on May 21 on the impact of the decision, USCIS took the position that employers are obligated to file amendments for location changes that took place before the AAO decision was handed down on April 9, as well as relocations occurring before the guidance was issued. It set an August 19 deadline for those amendments.
When Does a Location Change Require an Amended Petition Under The New Guidance?
This week’s final guidance relaxes some of the requirements outlined in the May 21 guidance. It extends the initial deadline to file an amended petition to January 15 for all relocations that occur after April 9 but before August 19.
It also provides that for relocations occurring on or after August 19 , the H-1B worker may not move to the new location until the employer files the H-1B petition with USCIS. However, consistent with existing H-1B portability rules, the employee need not wait for approval of the amended petition before commencing work in the new location.
More significantly, the guidance eases the agency’s initial plan to apply the Simeio decision retroactively to H-1B relocations that took place on or before April 9. The guidance now provides that employers may choose whether or not to file pre-April 9 relocation amendments with USCIS, and gives employers until January 15, 2016 if they choose to file an amended petition. While the guidance expresses the agency’s intention not to challenge employers who decide against filing amendments related to pre-April 9 relocations, it suggests that USCIS has reserved at least some discretion to challenge the failure to file an amended petition for these cases; therefore we encourage employers to carefully discuss their options with the Fragomen professionals with whom they work.
USCIS also cautioned that if prior to the issuance of the final guidance on July 21, the agency had already challenged an employer regarding a noncompliant relocation, i.e., through a Request for Evidence (RFE) or Notice of Intent to Revoke/Deny (NOIR/NOID), then USCIS may continue to pursue these challenges and take adverse action against employers under prior guidance.
Other Instances Where Employers May Be Required to File an Amended Petition
The Simeio decision addressed the narrow issue of relocation as a material change requiring an amended petition. It did not address other types of material changes in the terms and conditions of employment, which also require employers to file amended petitions. Examples may include a material change in job duties, or a change in assignment to a new third-party worksite (even if that worksite is within the same geographic area of employment covered by the original LCA).
When Do Employers Not Have to File Amended Petitions?
In its new guidance, USCIS also reiterated its longstanding policy that an amendment is not required for “short-term placements” or time spent at non-worksite locations, as those terms are described in DOL regulations. Similarly, there is no requirement to file an amended petition when the H-1B employee moves to a worksite within the same geographic area already covered by an LCA and petition approved by USCIS – provided that there are no other material changes in the terms and conditions of employment and the employer complies with the LCA posting requirements at the new location.
Applying Simeio Going Forward
The Simeio decision makes clear that employers must file an amended petition (including a conforming LCA) for a new H-1B worksite before the foreign employee relocates. USCIS does not require the amendment to be approved before the relocation, but if the foreign beneficiary has international travel plans, then waiting for an approval notice, or at least a USCIS filing receipt, before departing may help minimize delays when applying for a new visa at a consulate or when re-entering the United States.
What This Means for Employers
USCIS’s final guidance provides some relief to employers who are faced with significant financial and administrative burdens following Simeio. The extended deadline will allow employers – particularly those in fields requiring frequent employee relocations, such as the consulting industry – to spread Simeio-related costs over a longer period of time, and provides sufficient time to employers to come into compliance with the decision.
Although the guidance implies that Simeio will no longer require retroactive compliance with the rule, employers should nevertheless consult with their Fragomen counsel before making this determination, given the ambiguity in the regulations as to what qualifies as a “material change” and how the new guidance may apply in a specific case. Employers are also encouraged to seek legal advice on the risks involved with filing “chain” amendments (i.e., where an H-1B employee is frequently relocated and may be the beneficiary of several pending amendments at once). The USCIS guidance makes clear that every amended or new H-1B petition must separately meet the requirements for H-1B status.
Fragomen continues to work with its advocacy partners to seek further clarification on the final guidance memorandum on when to file an amended or new H-1B petition under Simeio. If you have any questions about H-1B location changes, please contact your designated Fragomen professional.
