USCIS Issues Final H-1B Amendment Guidance That Offers Relief to Employers That Relied on Prior Guidance | Practical Law

USCIS Issues Final H-1B Amendment Guidance That Offers Relief to Employers That Relied on Prior Guidance | Practical Law

US Citizenship and Immigration Services (USCIS) has issued its final guidance on when to file an amended or new H-1B petition in light of a worksite change. The guidance follows the Administrative Appeals Office's (AAO) precedential decision in Simeio Solutions, LLC and is effective immediately.

USCIS Issues Final H-1B Amendment Guidance That Offers Relief to Employers That Relied on Prior Guidance

by Practical Law Labor & Employment
Published on 27 Jul 2015 • USA (National/Federal)
US Citizenship and Immigration Services (USCIS) has issued its final guidance on when to file an amended or new H-1B petition in light of a worksite change. The guidance follows the Administrative Appeals Office's (AAO) precedential decision in Simeio Solutions, LLC and is effective immediately.
On July 21, 2015, US Citizenship and Immigration Services (USCIS) announced that it had issued Policy Memorandum 602-0120, USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC. The memorandum describes when an employer must file a new or amended H-1B petition for an H-1B worker who has or will be moved to a new worksite outside the geographical area covered by the employee's current H-1B petition, even if the employer obtained a new Labor Condition Application (LCA) for the new worksite. Unlike the draft guidance, which required employers to file new or amended H-1B petitions for workers who changed worksites before the Simeio decision, this final Policy Memorandum allows employers to forgo such petitions if the employee's worksite change is not already subject to a USCIS challenge. The final guidance also creates a safe harbor for employers that wish to file amendments for pre-Simeio worksite changes.
On April 9, 2015, in its precedential decision Simeio Solutions, LLC, the USCIS Administrative Appeals Office (AAO) held that employers must file an amended H-1B petition when they change the work location of H-1B workers and a new Labor Condition Application (LCA) is required (26 I&N Dec. 542 (AAO 2015)). For more information, see Legal Update, Amended H-1B Petition Required for Change in Work Location: AAO.
On May 21, 2015, USCIS issued draft guidance and requested public comment regarding the implementation of Simeio. The draft guidance gave employers with H-1B employees who changed or were changing worksite locations before and at the time Simeio was decided until August 19, 2015 to file amended H-1B petitions. For more information, see Legal Update, USCIS Issues H-1B Amendment Guidance.
The final guidance provides more flexibility for employers whose H-1B workers changed to a new worksite before or at the time Simeio was decided. To accommodate petitioners who need to become compliant with Simeio, Policy Memorandum (PM) 602-0120 states that:
  • If an H-1B employee moved on or before the publication date of Simeio to new employment not covered by an existing, approved H-1B petition, USCIS generally will not pursue new adverse actions based solely on 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 before July 21, 2015; and
    • pursue new adverse actions if it determines there are other violations.
  • If an employer wishes to file an amended or new H-1B petition to request a change in the employment location that occurred on or before Simeio, it may file that petition during a safe harbor period ending January 15, 2016.
  • If an H-1B employee moved or moves to new employment (not covered by an existing, approved H-1B petition) between April 9, 2015 and August 19, 2015, the employer must file a new or amended H-1B petition by January 15, 2016. If the employer fails to file the petition:
    • the petitioner is not in compliance with DHS regulations and USCIS interpretation of the law, and will therefore be subject to adverse action; and
    • the H-1B employee will not maintain nonimmigrant status and will also be subject to adverse action.
  • If the change in employment (not covered by an existing, approved H-1B petition) occurs on or after August 19, 2015, the petitioner must file an amended or new petition before the employee begins working at the new location.
The memorandum provides a chart of additional guidance for situations where a petitioner must file an amended or new H-1B petition. PM-602-0120 is effective immediately.