New USCIS Guidance Has Significant Consequences for H-1B Employers

by Franczek Radelet P.C.
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On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a precedential decision (Matter of Simeio Solutions, 26 I&N Dec. 542) that significantly impacts U.S. employers employing H-1B workers with frequent worksite changes. The AAO provided clarification on when an “amended” H-1B petition must be filed in a decision that will significantly impact the compliance burden for many H-1B employers.  

Background 

Consulting businesses are heavy users of the H-1B visa, and their business model often involves the short-term placement of workers on a temporary basis at a third party location. Their workers are often relocated to different sites at the conclusion of a particular project, and such relocations can often occur to worksites not originally contemplated or listed on the documentation submitted in support of the H-1B petition. This documentation includes the Labor Condition Application (LCA), which is submitted to the Department of Labor (DOL) and is certified by the DOL after the agency finds that the employment of an H-1B worker will not adversely impact the conditions of employment of U.S. workers in similar positions in the contemplated area of employment. It also includes the Form I-129, which is submitted with a certified LCA and other supporting documents to obtain H-1B approval. 

The statutory and regulatory scheme governing H-1B visas requires the employer to “promptly” inform the USCIS about any material changes in the terms and conditions of H-1B employment by filing an “amended” H-1B petition. While the USCIS had previously offered some guidance on the definition of a “material change”, the agency had provided inconsistent guidance on whether or not the H-1B worker’s relocation to a new location constitutes the type of material change that requires a new, amended petition. 

AAO Decision and Its Significance 

Through Simeio Solutions, the AAO has eliminated this ambiguity and unequivocally stated that the relocation of an H-1B worker to a worksite not previously listed on the LCA or H-1B petition submitted to USCIS requires not only a newly certified LCA, but also an amended H-1B petition. The AAO found that the relocation of an employee to a new worksite represents a material change in the terms and conditions of H-1B employment and thereby triggers the employer’s responsibility to file an amended petition. Certain exceptions to this requirement still exist for: 

  1. Non worksite locations pursuant to 20 C.F.R. 655.715, where non worksite locations are defined as such locations where an employee goes to participate in employee development (conferences and seminars, for example), or otherwise spends very little time outside the primary worksite (generally defined as not exceeding five consecutive calendar days);
  2. Short-term placements pursuant to 20 C.F.R. 655.735, where a short term placement is defined as a worksite of no more than 30 calendar days during the year (or 60 days when the employee is still based at the primary worksite); and
  3. Relocations within the same Metropolitan Statistical Area, which is generally defined as the county listed on the LCA (although the employer would need to comply with any LCA posting requirements at a new worksite).

All other situations involving a new worksite require the employer to file the amended petition before the employee has been moved to the new worksite. This requires, at the very least, certification of an existing LCA since an H-1B petition is incomplete without a corresponding, certified LCA, and the submission of the H-1B petition on or before the date that the employee has been moved to the new location.   

Most Recent Guidance from USCIS 

In light of the impact of the AAO’s decision, the USCIS issued guidance on May 21, 2015, indicating that it would give employers up to 90 days to comply with the AAO’s decision. In other words, employers that moved workers prior to Simeio Solutions without filing an amended petition will not be the subject of adverse agency action so long as an amended petition is filed on or before August 19, 2015. If no amended petition is filed by this date, an H-1B worker under these circumstances is out of status and USCIS could revoke the H-1B worker’s status or otherwise deny a request for an extension. 

Given this guidance, it is critical that employers who employ H-1B workers reexamine their submissions to USCIS and confirm that they still continue to maintain the same terms and conditions of employment as they originally represented to the Agency. This guidance also makes it imperative that employers contemplating moving an H-1B worker to a new location not listed on the LCA and/or I-129 petition first obtain a certified LCA covering that location, file the new amended I-129 petition with USCIS, and then move the worker to the new worksite.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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