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U.S. Citizenship and Immigration Services (USCIS) released final guidance July 21, 2015, stating that it will “generally not pursue new adverse actions” against employers solely based upon a failure to file an amended or new petition for H-1B workers who changed jobsites before April 9, 2015.
If an H-1B employee was moved to a new location on or before April 9—the date of the Administrative Appeals Office precedential decision in Matter of Simeio Solutions LLC—the agency will not pursue denial or revocation regarding that move after July 21, 2015.
The agency will, however, preserve adverse actions which had already commenced or have been completed prior to July 21, 2015.
If employers wish to file an amended or new H-1B petition to request a change in a worker’s place of employment that occurred prior to April 9, USCIS will consider these filings to be protected in a safe harbor and not subject to adverse action. To receive this safe harbor benefit, the new or amended petition must be filed no later than Jan. 15, 2016.
Employers that have moved H-1B workers to new work locations after April 9, 2015, but prior to Aug. 19, 2015, must file an amended or new petition by Jan. 15, 2016. If an H-1B employee moves to a new location of employment on or after Aug. 19, 2015, the employer must file an amended or new petition before the H-1B employee begins work at the new location.
Lynn Shotwell, executive director of the Council for Global Immigration (CFGI), an affiliate of the Society for Human Resource Management (SHRM), agreed with the agency’s final decision. “CFGI and SHRM applaud USCIS for issuing this clear guidance on filing amended petitions when H-1B employees change locations. We are pleased this guidance directly responds to concerns we raised with the agency. For our members, visa processing inefficiencies routinely impede their ability to meet business objectives,” she said.Reversing Precedent
In Simeio, the Administrative Appeals Office held that an H-1B employer must file an amended or new H-1B petition with USCIS if the H-1B employee is changing his or her place of employment to a geographical area requiring a new labor condition application (LCA), even if a new LCA has already been certified by the Department of Labor. Prior to Simeio, many employers filed new LCAs but did not amend petitions in these circumstances, said Justin Storch, manager of agency liaison at CFGI.
In July 2003, Shotwell sent a letter to USCIS seeking clarification on whether an amended petition is required when an H-1B employee transfers to a new location not included on the original filing, but which is covered by an LCA in place prior to the move. In October 2003, Shotwell received a letter from Efren Hernandez III, the director of the Business and Trade Branch of USCIS, stating that as long as the LCA was certified and any other LCA obligations were met prior to the employee starting work at a new worksite, no material changes existed which would require the filing of an amended H-1B petition. “Employers relied on the Hernandez-Shotwell correspondence for years, which stated that employers need not file amended H-1B petitions simply because the location changed,” said Storch.
Exceptions USCIS outlined a few exceptions from the need to file an amended or new petition. These exceptions include:
Employers’ Next Steps
In light of Simeio and the subsequent USCIS guidance, employers should review existing H-1B petitions to determine if there has been a change in the covered employee’s location of employment and whether an amended petition is needed to remain compliant.
“Going forward, the cost, time and resources required to file amended petitions will need to be taken into account before any decision is made to move an H-1B employee to a new location,” Storch said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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