We previously wrote an article on this issue when The Administrative Appeals Office (AAO) on April 9, 2015, handed down a precedent decision, Matter of Simeio Solutions.
Generally, for relocations occurring after April 9 but prior to August 19, employers will have until January 15, 2016 to file amended H-1b petitions. We informed our readers previously that the due date for filing an amendment was August 19th, but that has been extended five months. This is the first big change.
USICIS also said that it will “generally not pursue new adverse actions (e.g., denials or revocations)” against employers that do not file amended petitions based on location changes that occurred before the Simeio decision was issued, in other words before April 9th, but it gives employers the option filing amendments by the new deadline.
Note that for any H-1b relocations occurring on or after August 19, employers MUST file an amended petition before the move takes place.
As has always been the case, the USCIS has always required an amendment when there is material change in an H-1B worker’s employment. Basically, the USCIS AAO ruled in Simeio that a material change occurs when an H-1B employee moves to a new worksite that was not specified in the employer’s initial petition and accompanying labor condition application (LCA). So, basically the definition of “material change” was expanded to include these situations.
Some of the other final rules to make note of include the rule that for relocations occurring on or after August 19th , the H-1B worker may not move to the new location until the employer files the H-1B petition with USCIS. However, the existing H-1B portability rules stay intact and therefore apply so that the employee does not need to wait for approval of the amended petition before commencing work in the new location.
As stated above, the final guidance now allows employers to choose whether or not to file pre-April 9 relocation amendments with USCIS, and gives employers until January 15, 2016 if they choose to file an amended petition.
The final guidance does state that the USCIS DOES NOT intend to challenge employers who decide against filing amendments related to pre-April 9 relocations, but it implies that USCIS DOES HAVE discretion to challenge, so we believe that the prudent approach would be to file an amendment in all cases to avoid any risk of challenge and revocation. USCIS also said that if it has already challenged an employer regarding a noncompliant relocation, i.e., through a Request for Evidence (RFE) or Notice of Intent to Revoke/Deny (NOIR/NOID), then USCIS may continue to pursue these challenges and take adverse action against employers under prior guidance.
In addition, employers should remember that amendments are required for a material change in job duties, or a change in assignment to a new third-party worksite (even if that worksite is within the same geographic area of employment covered by the original LCA).
USCIS also noted an amendment is not required for “short-term placements[1]” or time spent at non-worksite locations, as those terms are described in DOL regulations. Similarly, there is no requirement to file an amended petition when the H-1B employee moves to a worksite within the same geographic area already covered by an LCA and petition approved by USCIS – provided that there are no other material changes in the terms and conditions of employment and the employer complies with the LCA posting requirements at the new location.
USCIS’s final guidance does provides some relief to employers following Simeio but overall, Simeio creates a new burden on employers and there is very little grey area now as to whether one must file an amendment in the case of a work location change outside of the immediate geographic area of original employment.
[1] Short term placement as per the DOL is defined as placement of the individual H-1B worker at any site in an area of employment does not exceed 30 workdays (consecutive or non-consecutive) within a one-year period. Such placement may be for an additional 30 workdays, but for no more than 60 workdays, in a one year period, where the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite (e.g., a dedicated workstation at the permanent worksite; the employee’s abode is located near that worksite), and the worker spends a substantial amount of time at the permanent worksite.