By Attorneys Nancy E. Miller and Michael Bhotiwihok
In April of 2015, the Administrative Appeals Office (“AAO”) issued a decision called Matter of Simeio Solutions, LLC which profoundly changed long-standing U.S. Citizenship and Immigration Services (“USCIS”) policy and caused alarm throughout the American business community for employers and H-1B employees.
In Matter of Simeio, the AAO held that a change in H-1B employee’s work location not specified in the initial H-1B petition and Labor Condition Application (“LCA”) certified by the U.S. Department of Labor (“DOL”) requires the employer to file an amended H-1B petition with the USCIS.Employers and employees, especially consulting firms in the information technology, engineering, and health care industries, became deeply concerned with the significant adverse impact of H-1B employee relocation and significant costs involved with an amended H-1B petition filing.
Uncertainty and anxiety were further heightened in late May 2015 with the confusing USCIS Draft Guidance on Matter of Simeio, which attempted to clarify when employers must file an amended H-1B petition for an employee who is transferred to a new work-location not listed on the original approved petition.
The USCIS Draft Guidance provided that Matter of Simeiowill apply retroactively and gave employers a 90-day grace period to file an amended H-1B petition if the worksite change occurred before May 21, 2015.The filing of an amended H-1B petition would allow employers to avoid adverse action from the USCIS is the employer relied in good faith on prior USCIS guidance regarding a change of worksite location. Failure to file an amended H-1B petition would result in employees being out of status and employers being subject to sanctions.
Not all H-1B employee worksite changes result in a negative impact under the USCIS Draft Guidance. For employees relocated within the same metropolitan statistical area (“MSA”) or area of intended employment, an amended H-1B petition is not required unless there is a material change like change in supervision or control of an employee at the new worksite location. It bears noting that the DOL defines area of intended employment to include a new location outside of the MSA if that location is “within normal commuting distance.” Other changes in worksite location, i.e. short-term placement and time at non-worksites, do not require an amended H-1B filing unless there is a material change in employment.
In response to the USCIS Draft Guidance, comments were made to the Department Homeland Security (“DHS”) pointed out that for over two decades American employers relied on prior USCIS guidance that no amended H-1B petition was required when a LCA is in place for an employee’s new worksite. Also, the comments identified the proper legal channel for announcing a rule change, and the extreme burdens an amended H-1B petition would place on employers and employees.
Recommendations included that the USCIS withdraw Matter of Simeio and Draft Guidance, or, at the least, apply it prospectively, not retroactively. Another recommendation suggested that an amended H-1B petition should be required if the employee’s worksite location is changed to a worksite location that is not within the same metropolitan statistical location or area of intended employment covered by a LCA certified by the DOL on or after October 1, 2015.
It was further recommended that should Matter of Simeio not be withdrawn, notice must be provided to employers and employees along with a six month time frame, instead of 90 days, to comply. Additional recommendations included developing a process for employers to notify the USCIS when an employee moves within the same MSA or area of intended employment to prevent unnecessary Fraud Detention and National Security action. Finally, the recommendations requested a simple application specifically designed to amend an H-1B petition for a change in employee worksite which benefits, not penalizes, employers and employees while at the same time protecting the United States workforce.
Although most recently issued as USCIS Draft Guidance, employers and employees must be aware of Matter of Simeio and the potential need to file an amended H-1B petition for an employee change in worksite location to be in compliance with the USCIS and avoid adverse action from the USCIS.However, employers must keep in mind that DHS will review the comments and suggestions before issuing Final Guidance on Matter of Simeio.
Employers who may need to file an amended H-1B petition based on a change in an employee’s worksite should consult with an experienced and knowledgeable immigration attorney to determine their obligations in order to be in timely compliance.
