Final guidance has been issued with regard to H-1B jobsite moves. The guidance was issued as a result of an April 9, 2015, precedent decision from US Citizenship and Immigration Services (“USCIS”) in Matter of Simeio Solutions, LLC, ruling that employers must file an amended H-1B petition whenever there is a material change in an H-1B foreign worker’s jobsite location. Simeio mandated that, in addition to submitting and posting a new Labor Condition Application (“LCA”) with the US Department of Labor (“DOL”), as had been the practice for 25 years, the I-129 petition filing with USCIS must also be redone. The burden for employers whose H-1B talent is customer-facing, and thus may move from site to site, is significant, both in terms of process burdens and fees for the I-129s (the LCA has no fee requirement).
USCIS initially issued implementing guidance on May 21 2015, stating that an amended H-1B petition is required if a foreign worker’s jobsite location has moved outside the area of intended employment on the original LCA (typically this is the Metropolitan Statistical Area). On May 27, 2015, USCIS designated the implementing guidance as “proposed,” and invited comments. As originally proposed, the implementing guidance would have required the filing of new or amended petitions for new moves as well as for jobsite changes that had occurred prior to April 9, 2015. It also would have set a deadline of August 19, 2015 for H-1B employers to file the required amended H-1B petitions for moves that had occurred before the guidance was issued.
Having considered the public comments, USCIS issued final guidance on July 21, 2015, with several significant changes that employers will want to note. First, employers may, but are not required to, file amended petitions for H-1B workers who changed jobsite locations on or before April 9, 2015. USCIS “will not generally pursue revocations of denials based solely on an employer’s failure to file” an amended H-1B petition, but the agency will also not rescind revocation actions that have already been implemented. Second, employers that must file an amended H-1B petition as required by the Simeio ruling for moves occurring before August 19, 2015, now have until January 15, 2016 to file. The chart below outlines the specific actions employers must take based on USCIS’ final guidance and highlights some practical recommendations for employers to consider when implementing the new guidance:
Click here to view the table.
The guidance made clear that while a new or amended petition must be filed before the change in worksite, the petition need not be approved prior to the commencement of employment at the new location. The guidance also reaffirms circumstances under which a new or amended petition need not be filed, i.e., a move within an “area of intended employment,” “short-term placements,” and non-worksite locations, as defined in DOL regulations at 20 CFR 655.715, which houses the precise articulation of these definitions.
On the Horizon
Employers will be heartened by the fact that USCIS would seem to have listened to their calls for a longer safe-harbor period and for Matter of Simeio to be applied only prospectively. They likely will be disappointed, however, by the obtuse language used by the agency in describing its decision not to apply the case retroactively. By stating that, “USCIS will generally not pursue new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition …” (emphasis added), the agency has left open the possibility that individual officers, perhaps years from now, could pursue such an adverse action, for example, in the process of adjudicating an application for adjustment of status. We can expect employers affected by this guidance to continue to press the agency for clarity on this important point. Removal of the word, “generally,” would not obviate what is clearly an exercise of prosecutorial discretion on the part of the agency, even if it would serve to eliminate discretion at the officer level.