USCIS Issues Final Guidance on When to File an Amended or New H-1B Petition after Simeio Decision

By Zuzana Geremes, Paralegal

On April 9, 2015, USCIS published a draft guidance based on its Administrative Appeal Office’s precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers is required due to a change in the H-1B worker’s worksite location.

More specifically, the Simeio decision stated that an amended H-1B petition must be filed under the following circumstances:

         1.  When H-1B employees change their place of employment to a worksite location that requires employers to file a new Labor Condition Application for         Nonimmigrant Workers with the Department of Labor, which represents a material change in the terms and conditions of H-1B employment.

The change of the place of employment refers specifically to a worker’s move outside of the metropolitan statistical area where the current H-1B position is located. 

        2.  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 Labor Condition Application.

After the draft guidance was published, USCIS accepted comments regarding the issue for a limited period of time, and on July 21, 2015, USCIS released its final guidance (Policy Memorandum PM-602-0120).

The final guidance specifies when employers must file an amended H-1B petition based on whether the change in the worker’s worksite location occurred before or after April 9, 2015 (the day USCIS published the draft guidance):

• If an H-1B employee moved to a new worksite location on or before April 9, 2015, the petitioner may choose to file an amended H-1B petition by January 15, 2016.  If the employer does not file an amended H-1B petition based on the location change that occurred on or before April 9, 2015, USCIS will generally take adverse action against such an employer.

• If an H-1B employee moved to a new worksite location between April 9, 2015 and August 19, 2015, the petitioner must file an amended H-1B petition by January 15, 2016.  If by January 15, 2016, a petitioner does not file an amended petition for an H-1B employee who moved to a new place of employment after April 9, 2015 but before August 19, 2015, the petitioner will be out of compliance and subject to adverse action by USCIS. Similarly, the H-1B employee will also be subject to adverse action by USCIS.

• If the change in the place of employment occurs on or after August 19, 2015, then the petitioner must file an amended or new petition before the employee begins working at the new location.