By: Vanessa Olivar, Stephen H. Smalley
As of August 19, 2015, full enforcement of a recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) will commence.
On April 9, 2015, the AAO-the appellate body for U.S. Citizenship and Immigration Services (USCIS)-issued the Simeio decision,which creates new obligations for employers with H-1B employees. In Simeio, the AAO concluded that an H-1B employee’s change in worksite location requires the employer to certify a new Labor Condition Application (LCA) for Nonimmigrant Workers to USCIS and file an amended H-1B petition because a worksite transfer constitutes a material change in the terms and conditions of employment. An amended petition is required when the new place of employment falls outside the Metropolitan Statistical Area (MSA) designated on the original LCA. Additionally, the Simeio decision provides USCIS with the authority to revoke any H-1B if an employee moves to a job site outside of the designated MSA on the original LCA, and the employer fails to file an amended H-1B petition prior to the change.
Previously, USCIS guidance provided that a mere change in geographic location-without other changes with respect to salary and job duties-did not require an employer to file an amended H-1B petition. This guidance established that employers met their H-1B obligations so long as (1) the LCA had been filed and certified prior to the change in location, (2) the appropriate worksite posting had taken place, and (3) other wage and hour obligations were met. The Simeio decision reverses this prior guidance.
On July 21, 2015, USCIS issued its final guidance on when to file an amended H-1B petition in light of the Simeio decision. USCIS provides the following guidelines for enforcement:
|Moves occurring prior to April 9, 2015 (the date of publication of the Simeio decision)||– As of July 21, USCIS will no longer pursue new adverse actions solely based on an employer’s failure to file a new petition regarding a move that occurred before April 9, 2015.
– H-1B employers may file amended H-1B petitions for worksite changes that occurred prior to or on April 9, 2015 by no later than January 15, 2016.
|Safe harbor period for moves occurring after April 9, 2015 but before August 19, 2015||– If the change in place of employment occurred after April 9, 2015 but prior to August 19, 2015, then the H-1B employer must file an amended H-1B petition prior to January 15, 2016.|
|Moves occurring on or after August 19, 2015||– As of August 19, 2015, the new H-1B obligations created under Simeio will be fully enforced.
– An H-1B employer must file an amended or new H-1B petition before the H-1B employee starts working at a new place of employment not covered by the existing and approved H-1B petition.
Employers with H-1B employees should carefully consider the enforcement guidelines above when deciding whether-and when-to file amended H-1B petitions.
The information above has been redistributed by Emigra Worldwide with permission from Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The information herein is for general purposes only and not intended as advice for a particular matter. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work.
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