USCIS Sets Aug 19th Deadline to File H1B Amendments for Employee Relocation03 Jun 2015
The U.S. Citizenship and Immigration Services (USCIS) has released interim guidance addressing employer obligations for filing amended petitions for H1B workers who have been moved to new worksites. The guidance sets a deadline of August 19, 2015 for H1B employers to come into compliance with the requirements laid out in the recent Matter of Simeio Solutions decision. The USCIS will accept comments from the public on this interim guidance through June 26, 2015.
Background on Simeio Solutions Requiring H1B Amendments
On April 9, 2015, the Administrative Appeals Office (AAO) issued a precedent decision addressing a key issue for employers of H1B workers. In Matter of Simeio Solutions, the USCIS disavowed prior guidance that permitted worker relocations without the filing of amended H1B petitions. Many employers long relied upon this now-defunct guidance and moved employees based on newly certified labor condition applications (LCAs), only. This practice, fell out of favor with the USCIS in recent years, and now is clearly and officially unacceptable. More information on the implications of the Matter of Simeio Solutions decision is available in the MurthyDotCom NewsBrief, H1B Amendment Required for Most Worksite Changes (27.Apr.2015).
H1B Amendments for Relocations or Changes in Job Duties
Under the USCIS interim guidance and the Matter of Simeio Solutions decision, an H1B amendment is required if there is any material change in either the job duties or geographic work location/s set out in the approved H1B petition. The amendment must be filed when there is a change in the “area of intended employment,” even if the employer has obtained a certified LCA for the new work location.
Exceptions for H1B Amendments: Same MSA, Short-Term Placements
The USCIS gives several examples of exceptions for the need to file an amended H1B petition following a change to a new work location. One such exception is if the H1B worker is moved within the metropolitan statistical area (MSA) covered by the initial LCA. In this situation, the employer must still comply with the posting requirements, but does not have to amend the H1B petition if no other material change has occurred.
In addition, the guidance does not alter the exceptions within existing regulations to allow for short-term placement of H1B workers outside the MSA listed in the existing LCA. The same is true for certain brief visits to what are referred to as non-worksite locations. This allows for attendance at conferences and other short-term, work-related travel. The details of these long-standing exceptions are outside the scope of this article.
Deadline for Filing Amendments is August 19, 2015
Per the interim guidance, the USCIS has granted employers a 90-day grace period to come into compliance with the rule announced in the Matter of Simeio Solutions decision. To that end, employers have until August 19, 2015 to file amended petitions for H1B workers who have been relocated, not including those covered by the exceptions. The USCIS will not take adverse action against employers or H1B workers who relied on prior guidance, so that long amended H1B petitions are properly filed by the August 19th deadline.
Change in Work Location Authorized Upon Filing
One detail in the interim guidance that is likely to help employers adjust to this new policy is a statement that H1B workers may begin working at new geographic locations immediately upon the filing of the amended H1B petitions. The guidance also notes that, if an H1B amended petition is denied, the worker generally may still return to the original worksite, assuming s/he is otherwise able to maintain valid H1B status.
This interim guidance provides some clarity on how the USCIS will implement this new set of rules brought about by the Matter of Simeio Solutions decision. Employers and H1B workers are encouraged to provide feedback to the USCIS about how this new policy will affect both U.S. businesses and their highly skilled workers hired through the H1B program. Murthy Law Firm attorneys are available to provide legal advice and representation related to the filing of H1B amendments.
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