Final Guidance on H-1B Change of Employment Location Pursuant to Simeio

In the final guidance on Simeio, USCIS extends the deadline for compliance from 08/19/2015 to 01/15/2016. 

According to the BIA decision of Matter of Simeio, changes in place of employment for an H-1B employee are considered material changes in terms and conditions of employment.  Such changes require the employer to file an amended or new H-1B petition and a new LCA with the USCIS. Previously USCIS had issued guidance on this matter in May, which provides a 90-day window for employers to comply with the new requirements.  After gathering additional comments from the public, USCIS issued its final guidance today.  

To comply with Simeio, USCIS issues the following revised guidelines:

1) Pre-Simeio changes in the place of employment requiring certification of a new LCA: 

"If a petitioner’s H-1B employee moved to a new area of employment (not covered by an existing, approved H-1B petition) on or before the date of publication of Matter of Simeio Solutions, LLC (April 9, 2015), 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 regarding that move after July 21, 2015. USCIS will, however, preserve adverse actions already commenced or completed prior to July 21, 2015 and will pursue new adverse actions if other violations are determined to have occurred."

What this means is that if the change of employment is before April 9, 2015, a new or amended H-1B petition is generally not required.  However, if USCIS has already initialed adverse actions (e.g., NOID) before July 21, 2015, the date of the memo, the agency may continue to pursue such actions.

2) Safe harbor period: 

"If a petitioner wishes, notwithstanding the above statement of discretion, to file an amended or new petition to request a change in the place of employment that occurred on or before the Simeio decision, the petitioner may file an amended or new petition by January 15, 2016. USCIS will consider filings during this safe harbor period to be timely for purposes of the regulation and meeting the definition of “nonimmigrant alien” at INA section 214(n)(2). "

3) Post-Simeio changes in the place of employment requiring certification of a new LCA:

"If by January 15, 2016 (deadline for filing) a petitioner does not file an amended or new petition for an H-1B employee who moved to a new place of employment (not covered by an existing, approved H-1B petition) after the date of publication of Matter of Simeio Solutions, LLC (April 9, 2015) but before August 19, 2015, the petitioner will be out of compliance with DHS regulations and the USCIS interpretation of the law, and thus subject to adverse action. Similarly, the petitioner’s H-1B employee will not be maintaining nonimmigrant status and will also be subject to adverse action.

What this means is that if the change of work location is between April 9, 2015 and August 19, 2015, the employer must file a new or amended H-1B petition with a certified LCA.  Otherwise, USCIS will take adverse actions against the parties.  

If the change in the place of employment (not covered by an existing, approved H-1B petition) occurs on or after August 19, 2015, then the petitioner must file an amended or new petition before the employee begins working at the new location."

There are situations in which amendments are not required.  Please see my previous blog entry for details.