Amended H-1B Petitions – Matter of Simeio Solutions, LLC

On April 9, 2015 the Administrative Appeals Office (AAO) published a decision in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), holding that:

  • A change in the place of employment of a beneficiary to a different MSA is a material change for purposes of the immigration regulations.
  • When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

United States Citizenship and Immigration Services (USCIS) has since published further guidance designed to help employers comply with the ruling in Simeio and determine whether an H-1B amendment filing is necessary, specifically expanding on when filing a new H-1B amendment is not necessary.

H-1B Amendment (and new LCA filing) IS required:

  • If an H-1B employee changed or will change to a new worksite location that is outside of the metropolitan statistical area(s) (MSAs) included on the LCA and covered by the initial approved H-1B petition. A new LCA must be filed and certified, including compliance with required posting, before the H-1B amendment can be filed. Once filed, the H-1B employee can begin working at the new worksite (waiting for approval of the H-1B amendment is not necessary).

H-1B Amendment IS NOT required:

  • If an H-1B employee is moving to a new worksite within the same metropolitan statistical area (MSA) as what was previously included on the LCA. Before the H-1B employee can move, the original LCA needs to be posted at the new worksite. As with any LCA, the notice must remain posted for the full 10 business days.
  • Under certain conditions, if the new worksite(s) would qualify as a “short-term placement” and the employee is temporarily placed for no more than 30 days, but if further requirements met could be up to 60 days in a calendar year (residence in area of permanent worksite, continued maintenance of office at permanent worksite and substantial time at permanent site in a one-year period). While at any short-term placement, the H-1B employer must continue to pay the prevailing wage of the area for the permanent worksite and must pay the H-1B worker for cost of lodging, travel, meals and incidental expenses for both workdays and non-workdays.
  • If the transfer is to a “non-worksite location” (e.g. seminar location, employee development activities, management conferences) or is short-term “recurring but not excessive” travel, where H-1B employees spend little time at any one location (less than 10 consecutive workdays for any one visit).
  • If the nature of the H-1B position is “peripatetic” by its very nature (e.g., travelling salespeople, in-home caregivers/therapists). These situations could involve a worker who is primarily based at one location, but occasionally travels for short periods (less than 10 consecutive workdays for any one visit) or a worker who frequently travels (salesperson) to multiple locations, but does not exceed five consecutive workdays for any one visit.

The USCIS guidance also provides a timeframe for bringing employers into compliance with Simeio and outlines actions needed:

  • If an employer’s H-1B employees were changing worksites outside of the previously approved MSAs listed on LCAs during the Simeio decision or made such transfers in worksites before the Simeio decision, these employers now have 90 days (until August 19, 2015) to file amended petitions for the affected employees without adverse action. If an employer’s H-1B amendment petition to change the worksite is denied, but the original petition is still valid, the H-1B employee may return to the initially approved worksite as long as the H-1B employee can maintain valid nonimmigrant status at the original site. If the H-1B amendment is pending, an employer can still file a subsequent amendment to allow an H-1B employee to change worksites immediately, but each petition must separately meet the requirements for H-1B classification and extension.

There is a window of time during which USCIS will not penalize employers who in good faith relied on prior agency correspondence regarding when an H-1B amendment petition is required. This grace period ends August 19, 2015. Employers should carefully audit their LCA files to confirm that no further amendments are required to comply with the Simeio decision and consult with immigration counsel with any questions.

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