USCIS Final Guidance on When to File an Amended H-1B PetitionPosted by admin on Jul 30, 2015 in H1B Visas, News | 0 comments
On April 9, 2015, USCIS’ Administrative Appeals Office (AAO) issued the precedent decision, Matter of Simeio Solutions, LLC (Simeio), that addressed when an employer must file an amended H-1B petition. It held that an H-1B employer must file an amended or new 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 place of employment.
Except as provided below in the Simeio compliance section, a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location.
Note: Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.
As explained in Simeio, this USCIS interpretation of the law clarifies, but does not depart from, existing regulations and previous agency policy pronouncements on when an amended H-1B petition must be filed. To accommodate petitioners who need to come into compliance with Simeio, USCIS will exercise its discretion as follows:
1. Changes in work location before April 9, 2015 requiring certification of a new LCA
If a petitioner’s H-1B employee moved to a new area of employment (not covered by an existing, approved H-1B petition) on or before the date of publication of Matter of Simeio Solutions, LLC (April 9, 2015), USCIS will generally not pursue new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition regarding that move after July 21, 2015. 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 for purposes of the regulation and meeting the definition of “nonimmigrant alien” at INA section 214(n)(2). Note: See the additional guidance in the table below for situations where a petitioner must file an amended or new petition.
2. Changes in work location after April 9, 2015 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 Matter of Simeio Solutions, LLC (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.
3. When a petitioner does NOT need to file an amended petition
If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See INA section 212(n)(4); 20 CFR 655.734. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition.
However, the petitioner must still post the original LCA in the new work location within the same area of intended employment. For example, an H-1B employee presently authorized to work at a location within the New York City metropolitan statistical area (NYC) may not trigger the need for a new LCA if merely transferred to a new worksite in NYC, but the petitioner would still need to post the previously obtained LCA at the new work location. See 20 CFR 655.734. This is required regardless of whether an entire office moved from one location to another within NYC, or just the one H-1B employee.
Please contact our office if you have any questions on this policy or need assistance in assessing your H-1B compliance under this new USCIS Final Guidance on H-1B location changes.