Executive Summary
A recent policy memorandum issued by the U.S. Citizenship and Immigration Services (“USCIS”) sets binding precedent for notifying USCIS and the Department of Labor when beneficiaries are relocated to new worksites in geographical areas not specified in original H-1B petitions. Under this memorandum, when a beneficiary’s new worksite is outside the “area of intended employment” specified in the original H-1B petition, the petitioner is required to file an amended H-1B petition supported by a new Labor Condition Application (“LCA”) disclosing the new worksite.
USCIS Final Guidance Regarding the Implementation of Matter of Simeio Solutions, LLC
On July 21, 2015, USCIS issued the policy memorandum confirming the recent decision of the Administrative Appeals Office in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) and establishing the protocol moving forward for changes in H-1B worksites. Pursuant to this guidance, H-1B petitioners must file an amended H-1B petition supported by a new LCA before an H-1B worker begins providing services at a new worksite outside the geographical area specified in the original H-1B petition. USCIS outlined the following timetable for petitioners to comply with the policy memorandum, which includes a safe harbor period for certain filings until January 15, 2016.
| If the H-1B employee began employment at a worksite not covered by the original H-1B petition on or before April 9, 2015… | The petitioner may file an amended petition by January 15, 2016 and the petition will be considered timely. If the petitioner does not file an amended petition by the end of the safe harbor period, USCIS will generally not pursue new revocations based on upon failure to file an amended petition. |
| If the H-1B employee began employment at a worksite not covered by the original H-1B petition after April 9, 2015 but before August 19, 2015… | The petitioner must file an amended petition by January 15, 2016 in order for the petition to be considered timely. If the petitioner does not file an amended petition by the end of the safe harbor period, the petitioner will be out of compliance with the policy memorandum. The H-1B petition will be subject to a notice of intent to revoke and the employee may no longer be maintaining H-1B status. |
| If the H-1B employee begins employment at a worksite not covered by the original H-1B petition on or after August 19, 2015… | The petitioner must file an amended petition before the H-1B employee begins employment at a new worksite not covered in the original H-1B petition. |
Practical Takeaways
As a result of this final guidance, petitioners may no longer post a new LCA without also filing an amended H-1B petition when an H-1B employee begins performing services outside the geographical area of the worksites specified in the original H-1B petition. It is now more important than ever that employers develop a protocol for monitoring H-1B worksites and notifying counsel when an H-1B worker will change to a worksite not included in the original H-1B petition. Employers that have relocated beneficiaries in the past without amending the underlying H-1B petition may be out of compliance if they do not file those petitions prior to the safe harbor period ending. Those employers should take steps to cure the issue as soon as possible. To evaluate whether an employer has any existing H-1B petitions that must be amended, please do not hesitate to contact:
- Michael Kim at (317) 977-1418 or mkim@wp.hallrender.com;
- Natalie Murphy at (317) 977-1481 or nmurphy@wp.hallrender.com;
- Charlotte Fillenwarth at (317) 977-1476 or cfillenwarth@wp.hallrender.com; or
- Your regular Hall Render attorney.
