Executive Summary: USCIS recently published Guidance purporting to rely on Matter of Simeio Solutions, addressing when employers must file an amended H-1B petition on behalf of H-1B workers who are transferred to a new work location not listed in the original approved petition. Although the Guidance contains numerous legal flaws, it states that the agency will not take adverse action against employers or employees for failure to file an amended petition, if the employer files a required petition prior to August 19, 2015. However, to be entitled to this reprieve, the employer must also establish that it relied in good faith on non-binding agency correspondence in not filing to amend before relocating the H-1B worker.
As earlier reported, in Matter of Simeio Solutions, LLC, USCIS adopted a change in policy requiring an H-1B employer to file an amended petition prior to assigning an H-1B employee to a worksite not listed in the original approved petition, if employment at the new geographic location would require the employer to obtain a new certified labor condition application (LCA). In a footnote to the decision, the USCIS Administrative Appeals Office insisted that the Simeio Solutions rule merely clarified, but did not depart from, the agency's longstanding interpretation of its H-1B amendment regulation. This statement is inaccurate. In USCIS Issues Flawed Guidance on Filing Amended H-1B Petitions Post Matter of Simeio, FordHarrison partner Mary Pivec discusses how the USCIS guidance claiming to rely on Simeio Solutions actually misstates the law governing the LCA process. She also addresses why employers who comply with the guidance's "good faith" proviso may find this to be an exercise in futility, ultimately resulting in the revocation of the original H-1B petition, and explains why litigation may provide the only effective relief from proposed sanctions and penalties. The article is available on the InDepth Analysis page of FordHarrison's web site and by clicking here.
Employers' Bottom Line: Although the USCIS Guidance is legally flawed, its announced 90-day delay in enforcement gives employers the opportunity to file amended petitions on behalf of H-1B workers transferred to a new work location requiring a new LCA, if they failed to do so when the employee was transferred. Employers who need to file amended petitions, or believe they may be required to do so, should consult with experienced immigration counsel regarding their options. Employers should take action promptly, as the Guidance states that employers who do not file amended petitions by the August 19, 2015, deadline will be considered to be out of compliance with USCIS guidance and regulations and will be subject to adverse action.