A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, January 7, 2016

Deadline for H-1B Amendments Under Simeio Approaches

Matter of Simeio Solutions, LLC, a recent BIA decision, mandates that an employer must file an H-1B amendment or a new H-1B petition when there is a change in the H-1B worker's place of employment.  The decision was issued on April 9, 2015, and USCIS has issued guidance regarding the enforcement of Simeio.   Treatment of these cases by USCIS depends on the date when the change of place of employment occurs.  

If the change of work location occurred on or before April 9, 2015, the petitioner is generally not required to file an amendment or new petition.

If the change of work location occurred between April 9, 2015 and August 19, 2015, then the employer has until January 15, 2016 to file an H-1B amendment or new petition reflecting the new place of employment.  If the employer fails to do so, then a violation is deemed to have occurred and both the employer and employee will suffer negative consequences.  For instance, the State Department already issued a cable communications directing all consular officers to refuse H-1B visa applications under Section 221(g) of the INA for such failures pursuant to Simeio.  

If a move to a new worksite occurred on or after August 19, 2015, the employer-petitioner must file an amended or new petition before the H-1B employees starts working at the new job site.  Again failure to do so will result in denial of petitions, loss of legal status, visa refusals, etc. 

It is important to note that changes in work location within the same geographical area (within normal commuting distance and within the same MSA) are generally not considered a change in place of employment.  Similarly short-term placements and occasional travel to other non-worksite locations for meetings, training, etc. are also not considered changes in place of employment under Simeio. 

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