USCIS ISSUES FINAL GUIDANCE ON WHEN TO SUBMIT H-1B AMENDED PETITION.
by Rabindra Singh
As discussed in my recently co-authored Article, H-1B AMENDMENTS POST-SIMEIO SOLUTIONS: WHY CIS SHOULD CONSIDER TAKING OFF THE RETROACTIVITY ASPECT FROM THE “DRAFT” GUIDANCE, United States Citizenship and Immigration Services (USCIS) in its revised Final Guidance, that was promulgated on July 21, 2015, suggests that the Simeio Solutions decision[1] will not be applied retroactively, which is a significant departure from the USCIS’ Draft Guidance.
As previously discussed in our above-mentioned article, in Simeio Solutions, the AAO specifically stated that when H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application (LCA) for nonimmigrant workers to the Department of Homeland Security (DHS), this change may affect the employee’s eligibility for H-1B status; it is therefore a “material change”.
Because the decision was not very clear as to whether the AAO only referred to a move outside the Metropolitan Statistical Area (MSA), the DHS Ombudsman call on April 30th, 2015, clarified that amended petitions will be required only for movement of H-1B workers outside the MSA listed on the LCA. Then, just when the new changes regarding H-1B amendments started to sink-in, came the surprise. On May 21st, 2015, USCIS issued guidance instructing employers to submit amended petitions for employees who changed worksite locations prior to the issuance of the Simeio Solutions decision.
Specifically, employers were asked to submit an amended H-1B petition if they, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment. The employers were asked to submit such amended petitions by August 19th, 2015. Six days later, on May 27th, 2015, USCIS updated its guidance to reflect that the guidance was in a “draft” form, and that comments would be accepted “for a limited period of time.”
USCIS’ final guidance provides the much needed relief sought by many companies (especially technology companies), employing a considerable amount of their workforce in the United States on H-1B visas. Of course, the new updates are welcome news since it would have been a significant cost in time and effort to employers for filing amended H-1B petitions on behalf of their employees for transfers that were made prior to the issuance of the Simeio Solutions decision.
So, how does the new guidance helps H-1B employers, and when are they required to submit amended H-1B petitions? As per the new guidance, if an H-1B worker moved to a new location not covered by the existing petition prior to or on April 9th, 2015, the date on which the Simeio Solutions decision was published, the “…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.” Simply put, an H-1B amended petition involving a location change outside of an MSA would be required if the change happened after April 9th, 2015. However, it needs to be noted that this guidance will not protect H-1B employers if an adverse action was initiated prior to July 21st, 2015.
Further, the recent Memorandum provides a Safe Harbor Period for all moves requiring an H-1B amended petition, which happened between April 9th, 2015, and August 19th, 2015. If any move took place during this period of time then petitioning employers must submit H-1B amended petitions by not later than January 15th, 2016. Additionally, any change in the place of employment (outside the MSA listed on the LCA) after August 19th, 2015, shall require an amended H-1B Petition.
The revised final guidance reconfirmed that an amended H-1B petition is not required if the geographical move is within the MSA. However, the petitioner is required to post the original LCA at the new work location. Similarly, an amended H-1B petition is not required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration at a location not listed on the LCA. Further, an H-1B amended petition need not be submitted to USCIS for short-term placements of up to 30 days, or in some case up to 60 days (where employee is still based at the “home” worksite).
Last but not the least; the revised final guidance confirms that if an employer’s amended H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition.
[1] Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).
