On Tuesday, July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) issued its final guidance on the recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC. Under Simeio, employers must file an amended H-1B petition, along with an updated Labor Condition Application (LCA), if an H-1B worker is moved to a location different from the one listed on the petition. USCIS clarified in May 2015 that a new petition is only required if the H-1B worker’s new site is outside the metropolitan statistical area (MSA) used in the initial petition. However, the original LCA must be posted at the worker’s new place of employment regardless of whether it is located within the same MSA as the worksite in the initial petition.
Initially, USCIS indicated that the Simeio decision would apply retroactively. USCIS also indicated that employers would have until August 19, 2015, to file an updated petition for all H-1B workers who had moved to a new site, including those who moved before the AAO’s Simeio decision. Contrary to this pronouncement, USCIS announced on July 21 that it generally will not pursue employers that, as of July 21, had not filed new H-1B petitions for workers who had moved before the Simeio decision. Despite that clarification, USCIS will not cancel any adverse actions that have already started or been completed.
Employers that want to file an amended petition for workers who moved prior to the date the Simeio decision was issued—April 9, 2015—may do so before January 15, 2016. If an employee changed job sites between April 9, 2015 and August 19, 2015, the employer must file a new or amended petition by January 15, 2016. If the employee is moved after August 19, 2015, the employer must file an amended petition before the H-1B employee begins work at the new location.
The elimination of the requirement to file an amended petition for a worker who moved to a new site prior to April 9, 2015 is important for employers that, under the previous guidance, faced the prospect of searching through their records to identify all employees who had moved to a worksite in a new MSA and, thus, whose petitions would have needed to be retroactively amended.
