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FROM “MUST” TO “MAY” ON
RETROACTIVITY: USCIS ISSUES FINAL
GUIDANCE ONWHEN TO SUBMIT AN
H-1B AMENDED PETITION UNDER
SIMEIO SOLUTIONS.
By: Michael Phulwani, Esq., David H.
Nachman, Esq. and Rabindra K. Singh,
Esq.
As discussed in our recently co-
authored Article, H-1B AMENDMENTS
POST-SIMEIO SOLUTIONS: WHY CIS
SHOULD CONSIDER TAKING OFF THE
RETROACTIVITY ASPECT FROMTHE
“DRAFT” GUIDANCE, United States
Citizenship and Immigration Services
(USCIS) in its revised Final Guidance,
that was promulgated on July 21, 2015,
suggests that the Simeio Solutions
decision will not be applied
retroactively, which is a significant
departure from the USCIS’ Draft
Guidance.
As previously discussed in our above-
mentioned article, in Simeio Solutions,
the AAO specifically stated that when H-
1B employees change their place of
employment to a worksite location that
requires employers to certify a new
Labor Condition Application (LCA) for
nonimmigrant workers to the
Department of Homeland Security
(DHS), this change may affect the
employee’s eligibility for H-1B status; it
is therefore a "material change".
Because the decision was not very
clear as to whether the AAO only
referred to a move outside the
Metropolitan Statistical Area (MSA), the
DHS Ombudsman call on April 30th,
2015, clarified that amended petitions
will be required only for movement of
H-1B workers outside the MSA listed on
the LCA. Then, just when the new
changes regarding H-1B amendments
started to sink-in, came the surprise. On
May 21st, 2015, USCIS issued guidance
instructing employers to submit
amended petitions for employees who
changed worksite locations prior to the
issuance of the Simeio Solutions
decision.
Specifically, employers were asked to
submit an amended H-1B petition if
they, in good faith, relied on prior non-
binding agency correspondence and did
not file an amended petition due to a
change in an MSA or area of intended
employment. The employers were asked
to submit such amended petitions by
August 19th, 2015. Six days later, on May
27th, 2015, USCIS updated its guidance
to reflect that the guidance was in a
“draft” form, and that comments would
be accepted “for a limited period of
time.”
USCIS’ final guidance provides the
much needed relief sought by many
companies (especially technology
companies), employing a considerable
amount of their workforce in the United
States on H-1B visas. Of course, the new
updates are welcome news since it
would have been a significant cost in
time and effort to employers for filing
amended H-1B petitions on behalf of
their employees for transfers that were
made prior to the issuance of the Simeio
Solutions decision.
So, how does the new guidance helps
H-1B employers, and when are they
required to submit amended H-1B
petitions? As per the new guidance, if an
H-1B worker moved to a new location
not covered by the existing petition prior
to or on April 9th, 2015, the date on
which the Simeio Solutions decision was
published, the “…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.” Simply put, an H-1B amended
petition involving a location change
outside of an MSA would be required if
the change happened after April 9th,
2015. However, it needs to be noted that
this guidance will not protect H-1B
employers if an adverse action was
initiated prior to July 21st, 2015.
Further, the recent Memorandum
provides a Safe Harbor Period for all
moves requiring an H-1B amended
petition, which happened between April
9th, 2015, and August 19th, 2015. If any
move took place during this period of
time then petitioning employers must
submit H-1B amended petitions by not
later than January 15th, 2016.
Additionally, any change in the place of
employment (outside the MSA listed on
the LCA) after August 19th, 2015, shall
require an amended H-1B Petition. For
quick reference, here is a helpful chart of
when H-1B amended petitions need to
be submitted.
Date of Employee(s) Movement Outside
The MSA Listed on LCA.
On or before April 9, 2015.
After April 9, 2015, but prior to August
19, 2015.
On or After August 19, 2015.
What Action Needs to be Taken?
No amended H-1B petition required.
Must submit H-1B amended or new
petition by January 15, 2016.
Must submit H-1B amended or new
petition.
The revised final guidance
reconfirmed that an amended H-1B
petition is not required if the
geographical move is within the MSA.
However, the petitioner is required to
post the original LCA at the new work
location. Similarly, an amended H-1B
petition is not required if the H-1B
employee is attending training sessions,
seminars, conferences, etc. of a short
duration at a location not listed on the
LCA. Further, an H-1B amended petition
need not be submitted to USCIS for
short-term placements of up to 30 days,
or in some case up to 60 days (where
employee is still based at the “home”
worksite).
Last but not the least; the revised final
guidance confirms that if an employer’s
amended H-1B petition is denied, but
the original petition remains valid, the
H-1B employee may return to work at
the place of employment covered by the
original petition.
News India Times September 11, 2015
23
IMMIGRATION
By:
Michael Phulwani, Esq.,
David H. Nachman, Esq.
and
Rabindra K. Singh, Esq.
FROM “MUST” TO “MAY” ON
RETROACTIVITY: USCIS ISSUES FINAL
GUIDANCE ON WHEN TO SUBMIT AN
H-1B AMENDED PETITION UNDER
SIMEIO SOLUTIONS
To Advertise in the
News India Times
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