Virginia, US

U.S. Citizenship and Immigration Services has issued guidance, in the form of a web alert on the agency’s website, setting out when employers must file an amended H-1B petition to be in compliance with the Administrative Appeals Office’s recent precedent decision, Matter of Simeio Solutions, LLC. While the guidance is labeled interim, and USCIS will accept comments from the public through June 26, 2015, the guidance is, in fact, already in effect.

As we have discussed in a previous blog post, the AAO held that employers must file an amended petition with USCIS whenever an H-1B employee moves to a new worksite that was not specified in the initial petition and accompanying labor condition application (LCA) certified by the Department of Labor. The decision explicitly supersedes prior informal agency correspondence advising that it was not necessary to file an amended H-1B petition when an H 1B employee transfers to a new location not included on the original Form I 129, so long as an LCA for the new worksite location had been certified by the Department of Labor prior to the employee’s move.

The new guidance contains both good news and bad news for employers. The good news is that a relocation within the same metropolitan statistical area (MSA) or area of intended employment does not require an amended petition. This includes a move to a new end-client worksite or a new petitioner worksite, so long as there are no material changes to the H-1B employment. Similarly, no amendment is required for short-term placements or time spent at non-work locations, as those terms are defined by the Department of Labor.

Note that even though it is not necessary to obtain a new certified LCA for moves within the same MSA or area of intended employment, the USCIS guidance says the employer “would still need to post the previously obtained LCA at the new work location.” This suggests that nothing short of a physical posting is sufficient, which is puzzling since USCIS is well aware that many employers post their LCAs electronically on the company website.

The bad news—and the biggest headache for employers—is that USCIS is requiring employers to file amended petitions for changes in location that have already occurred. Employers have 90 days from the date of the agency’s web alert (i.e., until August 19, 2015) to file amended petitions for any relocations requiring a new LCA that took place before May 21, 2015. This includes moves that occurred before the AAO decision was handed down on April 9. The amendment must cover the employee’s current location, but unfortunately USCIS has not specified whether employers must also notify USCIS of any prior relocations.

USCIS will not take any adverse action against an employer that did not file amended petitions in the past (nor will it take any adverse action against an affected H-1B employee) if the employer relied, in good faith, on the prior non-binding agency correspondence. But if the employer fails to file amended petitions for affected H-1B employees by August 19, the employer will be considered out of compliance with USCIS regulation and policy, and the affected employee(s) will be considered out of lawful status—which could lead to adverse action against both employer and employee.

Going forward, employers must obtain a new LCA from the Department of Labor and file an amended H-1B petition with USCIS before moving an H-1B employee to a new geographical location. Relying on existing “portability” rules for H-1B workers, the employee can start work at the new location as soon as the amended petition is properly submitted to USCIS. It is not necessary to wait for USCIS to approve the petition.

We stand by our earlier assertion that the AAO’s decision makes relocation of H-1B employees more difficult, time-consuming and costly. Similarly, we advise employers relocating employees within an MSA to be mindful of other changes in the conditions of employment that might rise to the level of a material change, such as a change in supervision and control of the employee at the new location. As discussed in our previous post, this has been a major focus of USCIS scrutiny in recent years, since the release of the so-called “Neufeld memo” which set out new requirements with respect to establishing that an employer-employee relationship exists. Most important, there is high enforcement exposure due to the frequency of audits by USCIS’ Fraud Detention and National Security (FDNS) Directorate.