USCIS Issues Memorandum on Final Guidance on When to File and Amended or New H-1B Petition After Matter of Simeo Solutions, LLC

 
Tuesday, July 28, 2015
 

The U.S. Citizenship and Immigration Services (USCIS) issued  a memorandum on the Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC.  The memorandum applies to determinations by all USCIS employees.  

When a petitioner must file an amended or new petition based on Simeio

Except as provided below in the Simeio compliance section, a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location.

When a petitioner does NOT need to file an amended petition

  • A move within an “area of intended employment”: If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See INA section 212(n)(4); 20 CFR 655.734.
    Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition.

    However, the petitioner must still post the original LCA in the new work location within the same area of intended employment. For example, an H-1B employee presently authorized to work at a location within the New York City metropolitan statistical area (NYC) may not trigger the need for a new LCA if merely transferred to a new worksite in NYC, but the petitioner would still need to post the previously obtained LCA at the new work location.

  • Short-term placements: Under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the "home" worksite), without obtaining a new LCA. See 20 CFR 655.735. In these situations, the petitioner does not need to file an amended or new H-1B petition provided there are no material changes in the terms and conditions of the H-1B worker’s employment.

Non-worksite locations: If H-1B employees are only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered to be a “non-worksite” if:

o The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;

o The H-1B employees spend little time at any one location; or

o The job is “peripatetic in nature,” such as situations where their job is primarily at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.

As explained in Simeio, this USCIS interpretation of the law clarifies, but does not depart from, existing regulations and previous agency policy pronouncements on when an amended H-1B petition must be filed. To accommodate petitioners who need to come into compliance with Simeio, USCIS will exercise its discretion.  It does, however, extend the safe harbor period for filing timely amended petitions from August 19, 2015 to January 15, 2016, regarding post-Simeio worksite transfers that occur between April 9, 2015 and August 19, 2015.   It also permits employers to file amended petitions for worksite transfers that occur on and after August 19, 2015, up to January 15, 2015, without risking an adverse action or status violation. Finally, the memorandum states that USCIS, in its discretion, will not pursue new adverse actions solely based upon failing to file an amended or new petition pre-Simeio after July 21, 2015, the date of the Memorandum on the Final Guidance.

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