By Nancy E. Miller and Michael Bhotiwihok
On April 9, 2015, the Administrative Appeals Office issued Matter of Simeio Solutions, LLC (“Simeio”) holding that an employer is required to file an amended or new H-1B petition before transferring an employee to a new place of employment not covered by an existing, approved H-1B petition. The decision raised several questions.
On July 21, 2015, the U.S. Citizenship and Immigration Services (“USCIS”) issued Final Guidance to clarify when an employer must file an amended or new H-1B petition for compliancewith Simeio. While the Final Guidance quelled some concerns, the USCIS may address questions not resolved by the Final Guidance in the future.
The Final Guidance focuses on three time frames when an employer must comply with Simeio.
First, is the Safe Harbor. If an employee moved to a new area of employment on or before April 9, 2015 and the employer failed to file an amended or new H-1B petition, the employer may file the amended or new petition by January 15, 2016 and it will be considered timely filed.
Second, if the employee’s change in place of employment requiring a new LCA occurred after April 9, 2015 but before August 19, 2015, the employer must file an amended or new H-1B petition by January 15, 2016. Failure to file by January 15, 2016 will cause the employer to be out of compliance and the employee may be found to have failed to maintain H-1B status.
Third, applies to those changes occurring on or after August 19, 2015. An employer must file an amended or new H-1B petition before the employee starts working at a new place of employment not covered by an existing, approved H-1B petition.
In addition, employers must comply with Notices of Intent to Revoke, Notices of Intent to Deny and Requests For Evidence (“RFE”) issued before July 21, 2015. Where a Notice of Intent to Revoke was received by the employer and the response period has not ended, filing an amended or new H-1B petition along with the prior response may avert revocation. In instances where an employer received a RFE or Notice of Intent to Deny, the safe harbor period may be satisfied if a certified copy of the LCA for the new employee work location was included at filing. It is important to note that an employer may not file an amended or new petition as a response to a RFE or Notice of Intent to Deny.
When an amended or new H-1B petition is denied, but the original petition is valid, the employee may return to the original place of employment. Also,the employee must be able to maintain valid nonimmigrant status at the original place of employment. For pending petitions, the filing of an amended or new petition allows for an employee’s worksite location change. In circumstances where the employee’s H-1B status expires while successive amended or new petitions are pending, denials for any petition, requests to amend, or extensions of status will result in denials of successive requests.
Under the Final Guidance, there are limited exceptions for employers. An employer does not need to file an amended petition when the employee moves within an “area of intended employment,” provided that no material changes in employment exist and the original LCA is posted at the new location. Short term placements (generally up to 30 days) of an employee at a new worksite do not require an amended or new petition. The same holds true for non-worksite locations such as where an employee participates in developmental activity, where an employee spends little time, or when an employee’s job is peripatetic in nature. Peripatetic in nature means an employee is primarily at one worksite location and travels to other locations for short periods of time.
It bears noting that Simeio presumes prior Labor Condition Application (“LCA”) compliance- meaning the employer has filed an LCA before the employee changes worksite location. If LCA deficiencies exist, then filing an amended H-1B petition under Simeio will neither protect the employer nor employee.
A new environment of compliance has been created where employers must understand the post Simeio world to avoid adverse action. Without this indispensable knowledge, employers run the risk losing valuable company assets like employees, time, and money. Further, H-1B employees run the risk of falling out status which could negatively impact their ability to continue to live and work in the United States. Employers should consult an experienced and knowledgeable immigration attorney for an understating of Simeio compliance and whether an amended or new H-1B petition is necessary.