A recent policy memorandum issued by the U.S. Citizenship and Immigration Services (“USCIS”) sets binding precedent for notifying USCIS and the Department of Labor when beneficiaries are relocated to new worksites in geographical areas not specified in original H-1B petitions. Under this memorandum, when a beneficiary’s new worksite is outside the “area of intended employment” specified in the original H-1B petition, the petitioner is required to file an amended H-1B petition supported by a new Labor Condition Application (“LCA”) disclosing the new worksite.
Matter of Simeio Solutions, LLC
The policy memorandum was issued as guidance for the implementation of a precedential case recently decided by the Administrative Appeals Office (“AAO”). In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), USCIS issued a Notice of Intent to Revoke an H-1B after discovering that an H-1B employee was performing services at a worksite not specified in the H-1B petition. In rebuttal, the petitioner confirmed that the H-1B employee had indeed changed worksites and, in response, provided a new certified LCA corresponding to the additional worksite. Despite the new LCA, USCIS proceeded with revocation of the H-1B on the basis that the petitioner was required to file an amended H-1B petition that included the new LCA. Because the H-1B worker was providing services at a worksite outside the “area of intended employment” set forth in the original petition, USCIS concluded that this was a material change to the employment necessitating an amended petition. On appeal, the AAO affirmed the decision, reasoning that the Immigration and Nationality Act ties the prevailing wage to the geographic area of employment, and therefore the addition of a new worksite not covered by the original LCA constitutes a material change affecting H-1B eligibility. As a result, the petitioner is required to file an amended H-1B petition.
To date, filing an amended H-1B petition has been the most conservative approach when an H-1B employee begins employment at a new worksite. However, in the past, some employers have relied upon prior USCIS guidance permitting H-1B petitioners to obtain a certified LCA to post at the new worksite without filing an amended H-1B petition. For those employers, this case represents a departure from the previously relied upon guidance.
USCIS Final Guidance Regarding the Implementation of Matter of Simeio Solutions, LLC
On July 21, 2015, USCIS issued the policy memorandum confirming the decision in Simeio Solutions and establishing the protocol moving forward for changes in H-1B worksites. Pursuant to this guidance, H-1B petitioners must file an amended H-1B petition supported by a new LCA before an H-1B worker begins providing services at a new worksite outside the geographical area specified in the original H-1B petition. USCIS outlined the following timetable for petitioners to comply with the policy memorandum, which includes a safe harbor period for certain filings until January 15, 2016.
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Adding further clarification, USCIS also identified situations in which H-1B petitioners are not required to file an amended H-1B petition.
- Worksites within the same area of intended employment: H-1B petitioners need not file an amended H-1B petition if the new worksite is located in the same metropolitan statistical area (“MSA”) or area of intended employment as the worksites specified in the original H-1B petition. That being said, petitioners are required to post the original LCA at the new worksite within the same MSA or area of intended employment prior to the beneficiary providing services at that location.
- Short-term placements: H-1B petitioners need not file an amended H-1B petition where the H-1B employee intends to perform services at the new worksite on a short-term basis. For this exception to apply, the employee may only provide services at the new worksite for up to 30 days or, in some cases, 60 days where the employee is still based at a “home” worksite.
- Non-worksites: H-1B petitioners need not file an amended H-1B petition if the new worksite is considered a “non-worksite,” such as where an employee goes to a location to participate in employee developmental activity or spends little time at the worksite, or the employment is “peripatetic” in nature, meaning it requires frequent travel to other locations.
As a result of this final guidance, petitioners may no longer post a new LCA without also filing an amended H-1B petition when an H-1B employee begins performing services outside the geographical area of the worksites specified in the original H-1B petition. It is now more important than ever that employers develop a protocol for monitoring H-1B worksites and notifying counsel when an H-1B worker will change to a worksite not included in the original H-1B petition. Employers that have relocated beneficiaries in the past without amending the underlying H-1B petition may be out of compliance if they do not file those petitions prior to the safe harbor period ending. Those employers should take steps to cure the issue as soon as possible.