Late last month, following the Administrative Appeals Office (AAO) decision of Matter of Simeio Solutions, LLC, US Citizenship & Immigration Services (USCIS) released draft guidance on the practical application of the decision. USCIS will accept public comments on the draft until June 26, 2015. Even in draft form, we were pleased to see that their guidance really did answer a lot of the lingering questions we had after the Simeio decision (thank you, USCIS!), and since this decision and guidance could potentially affect quite a few H-1B petitioners and applicants who have multiple work locations or have moved locations recently, we thought it would be helpful to review the major points of the guidance as well as a very important deadline (it’s August 19, 2015).
First off, what was the AAO decision in the Matter of Simeio Solutions, LLC?
The AAO decision in this case concerned the revocation of an H-1B petition for a foreign national IT worker. In this instance, the petitioner filed an H-1B petition listing a sole work location in Long Beach, California. After the petition was approved, when the beneficiary attempted to obtain a visa stamp at the US Embassy in New Delhi, India, the consular officer conducting the visa interview raised concerns about the approval of the H-1B petition, requested additional documentation, and referred the case back to USCIS. In addition, USCIS also visited the work location and found that the petitioner had vacated the site and was using an employee's home as the company address. After USCIS issued a notice of intent to revoke the approval of the petition, the petitioner submitted a new LCA listing two new work location addresses: one in Camarillo, California, and one in Hoboken, New Jersey. USCIS concluded that these work location changes "constituted a material change to the terms and conditions of employment as specified in the original petition" since the prevailing wage of these locations was different than what was previously listed on the original Labor Condition Application (LCA) for the Long Beach location and USCIS required that the petitioner “file an amended Form I-129 corresponding to a new LCA that reflects these changes." Since the petitioner had not filed the required amended H-1B, USCIS revoked the original petition approval.
Why is this important?
The AAO decision clarifies that a change of work location outside the specifically defined geographic area (see below) is a "material change" to the H-1B petition since such a change affects eligibility for H-1B status, and thus an amended H-1B petition must be filed. Previous to this decision, some practitioners may have only filed a new LCA and updated the company’s public access file when the employee changed geographic locations but may not necessarily have filed an amended H-1B petition.
So when exactly is an employer required to file an H-1B amendment?
To answer this question, it’s important to first take note of the term “Metropolitan Statistical Area” (MSA), which turns out to be rather important in this discussion. MSAs are geographic areas demarcated by the Office of Management and Budget for use by federal statistical agencies in collecting, tabulating, and publishing federal statistics. For H-1B purposes, wage data released by the Department of Labor (DOL) is based on these MSAs and is used in the H-1B filing process to determine the minimum wage that an employer must pay an H-1B employee. Therefore, the MSA wage data for New York City will very likely not be the same as for Columbus, Ohio.
As part of any H-1B petition, the employer/petitioner must submit an LCA that has been certified by the DOL. The LCA is designed to protect American workers by verifying to the DOL that the employer is paying the H-1B employee at least the industry wage level for the geographic location of employment (aka the MSA) thereby eliminating economic advantages to hiring foreign workers.
USCIS’s guidance on the AAO decision is now clear that an employer must file an amended H-1B petition if an employee is going to move to a location outside the MSA covered by the LCA included in the original H-1B petition. Simply filing a new LCA and complying with the LCA posting requirements is not enough. A formal H-1B amendment petition must be filed with USCIS. In addition, USCIS included an important side note to this guidance saying that once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location under the portability guidelines. The employee does not have to wait for a final adjudication on the amended petition to begin work. I, for one, am happy to see this official clarification included in the guidance.
When is an employer not required to file an H-1B amendment?
USCIS’s guidance enumerates three circumstances where an H-1B employee might change work locations and where the employer need not file an H-1B amendment.
- One such instance is a move within an MSA. If the H-1B employee is moving to a new job location within the same MSA, an amended H-1B petition is not required. USCIS does point out that the employer must still post the original LCA (per the applicable LCA regulations) in the new work location whether the entire company moves offices to a new location in the same MSA or just one H-1B employee moves to a different location within the same MSA.
- Another instance where an amendment would not be necessary would be in the context of a “short term placement.” Under certain circumstances, an H-1B may be placed at a new job location for up to thirty days, and in some cases sixty days (where the employee is still based at the original location), without the need to file an amended H-1B petition.
- The third example of when an amendment would not be needed would be when an H-1B travels to a “non-worksite location.” A location is considered to be “non-worksite” if: the H-1B employee is going to a location to participate in employee developmental activity, such as a conference; the H-1B employee spends little time at any one location; or the job is “peripatetic in nature.” USCIS defines this to mean where their primary job is at one location but the worker occasionally travels for short periods to other locations on a casual, short-term basis, which can be recurring but not excessive. If the H-1B employee is only going to a non-worksite location, an amended H-1B petition does not need to be filed.
What if employers read this guidance and discover that they should have filed an H-1B amendment but because the regulations were not clear previously they did not file. Can the situation be fixed?
Yes! USCIS opened a ninety-day-window to file amendments where it is now clearly required. August 19, 2015 is the deadline for petitioners to file H-1B amendment petitions based on the findings in the Simeio case. If the employer/petitioner’s H-1B employees were in the process of changing worksite locations to a new MSA at the time the Simeio decision was announced or if the worker had completed the move before the decision was announced, the petitioner has until August 19, 2015 to file amended petitions for the H-1B employees who changed their place of employment to a new MSA.
USCIS notes that if an amended H-1B petition is denied, but the original petition is still valid, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite. Additionally, if an employer previously filed an amended H-1B petition and it is still pending with USCIS, an employer may file another amended petition to allow the H-1B employee to change worksite locations again immediately upon the latest filing.
As the notice released by USCIS was just draft guidance, it is possible that the information above could change; however, for now, it is useful direction for the present, and we will update our blog with any further developments.