As previously reported, on May 22, 2015, U.S. Citizenship and Immigration Services (USCIS) posted draft guidance on when to file an amended H-1B petition after the decision in Matter of Simeio Solutions. On July 21, 2015, USCIS issued final guidance in the form of a Policy Memorandum. In the Policy Memorandum, USCIS extends the grace period provided to employers to comply with Simeio.
The Policy Memorandum confirms that an amended petition must be filed if the H-1B employee has moved or is going to move to a work location outside of the Metropolitan Statistical Area (MSA), even if a new LCA has already been certified and posted at the new location. The Policy Memorandum also clarifies that the employee can immediately begin work at the new location, once the amended petition filing has been made. The employer does not have to wait for a decision on the amended petition before the employee may start work at the new location. An amended petition is not always required whenever an employee moves work locations. The Policy Memorandum provides some examples of when an amended petition is not required.
The implementation timeline described in the Policy Memorandum is as follows:
- If H-1B workers changed their worksite location on or before the Simeio decision was published on April 9, 2015:
- USCIS will generally not take adverse action against the employer or employees after July 21, 2015 solely based upon a failure to file an amended or new petition regarding that move. USCIS will, however, preserve adverse actions already commenced or completed prior to July 21, 2015 and will pursue new adverse actions if other violations are determined to have occurred.
- Safe harbor period:
- If a petitioner wishes, notwithstanding the above statement of discretion, to file an amended or new petition to request a change in the place of employment that occurred on or before the Simeio decision, the petitioner may file an amended or new petition by January 15, 2016. USCIS will consider filings during this safe harbor period to be timely.
- Post-Simeio changes in the place of employment requiring certification of a new LCA:
- If by January 15, 2016 (deadline for filing) a petitioner does not file an amended or new petition for an H-1B employee who moved to a new place of employment (not covered by an existing, approved H-1B petition) after the date of publication of Simeio on April 9, 2015 but before August 19, 2015, the petitioner will be out of compliance with DHS regulations and the USCIS interpretation of the law, and thus subject to adverse action. Similarly, the petitioner’s H-1B employee will not be maintaining nonimmigrant status and will also be subject to adverse action.
- 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.
Whether a job location change requires an amended petition has been a controversial issue for a long time and USCIS has become much more strict on this issue in recent years. The decision in Matter of Simeio Solutions, LLC and the resulting Policy Memorandum emphasize the importance of working with experienced immigration counsel when evaluating whether an amended petition is required when an H-1B employee’s work location will change or in situations involving a new end client.