On July 21, 2015, USCIS issued a new policy memorandum providing final guidance on when employers are required to file H-1B amendments following a change in job site location for their H-1B employees. The final guidance clarifies issues raised both in the April 9, 2015, Administrative Appeals Office (AAO) decision, Matter of Simeio Solutions, LLC as well as in USCIS's draft guidance on this topic issued May 21, 2015. Simeio and the May 21 draft guidance defined USCIS's position that employers must file new or amended H-1B petitions any time an employee is moved to a work location outside the metropolitan statistical area (MSA) or “area of intended employment” covered by the existing, approved H-1B petition. The guidance confirms that filing a new LCA is no longer sufficient in these circumstances.
In the wake of the decision and draft guidance, numerous questions arose about the application of this new rule when the H-1B employee move occurred prior or in close proximity to the Simeio decision. As such, the final guidance clarifies/amends the following points regarding H-1B employers' filing obligations depending on when, relative to the Simeio decision, the H-1B employee moves outside the area covered by the existing, approved H-1B petition:
- The "safe harbor" period for petitioners who wish to file or must file an amendment has been extended from August 19, 2015 to January 15, 2016. USCIS will consider filings made during the "safe harbor" period timely.
- For cases where the petitioner's H-1B employee moved on or before the April 9, 2015, Simeio decision: petitioner may choose to file an amended or new petition by January 15, 2016, and such request will be deemed timely. Petitioners, however, are not required to file a new or amended petition and USCIS will exercise its discretion and "generally not pursue new adverse action," such as denials or revocations, if they are based solely upon the petitioner's failure to file a new or amended petition regarding that move after July 21, 2015 (the date of this final guidance). The guidance states, however, that USCIS will "preserve adverse actions already commenced or completed prior to July 21, 2015" and will also pursue any new adverse actions if it determines that other violations have occurred.
- For cases where the petitioner's H-1B employee moved after the April 9, 2015, Simeio decision but before the original August 19, 2015, amendment deadline: petitioners now have until January 15, 2016 to file new or amended H-1B petitions and failure to do so will render them out of compliance with DHS regulations and subject to adverse action. The final guidance also confirms that the USCIS will consider H-1B employees not to be maintaining nonimmigrant status and also subject to adverse action for failure to timely file under these circumstances.
- For cases where the petitioner's H-1B employee moves on or after August 19, 2015: petitioners must file a new or amended petition before the employee begins work at the new location.
The remainder of the final guidance remained largely unchanged from the policy laid out in the May 21 draft guidance and the final guidance confirms that 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. 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.