On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:
- When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
- When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.
This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. H-1B petitioners should follow the guidance below.
When You Must File an Amended Petition
You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.
When You Do NOT Need to File an Amended Petition
- A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
- Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
- Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
- The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- The H-1B employees spend little time at any one location; or
- The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.
Filing Amended H-1B Petitions
- If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.
- If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, 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 by May 21, 2015. However, as noted above, you must now file an amended petition for these H-1B employees byAugust 19, 2015.
- If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
- If your amended H-1B petition is denied, but the original petition is still valid your H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
- If your previously-filed amended H-1B petition is still pending, you may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005) for similar instructions about portability petitions.
To the extent possible, you should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.
@GetsonSchatz will be at the #AACR Career Fair on Saturday April 18th at the #AACR Annual Conference at the Philadelphia Convention Center from 9 am to 3 pm. Please visit us for an EB-1A/EB-1B/NIW case evaluation and to learn about our travel awards.
USCIS notice that on 4/13/15, it used a computer-generated random selection process, or lottery, to select petitions to meet the FY2016 cap. USCIS will begin premium processing for H-1B cap cases no later than 5/11/15. USCIS received nearly 233,000 H-1B petitions during the filing period.
USCIS has received enough H-1B cap-subject petitions to reach the cap for FY2016. USCIS will complete initial intake before it conducts the lottery, but due to the high number of petitions, it is not yet able to announce when the lottery will occur. AILA President Leslie Holman responded to this news, stating, “Once again, our country’s outdated and inefficient immigration laws are blocking economic gains and business growth.”
The Associated Press reported that the U.S. Court of Appeals for the Fifth Circuit set a hearing date of April 17, 2015, to decide whether the temporary hold on President Obama’s #executive actions on #immigration should be lifted. Last month, U.S. District Judge Andrew Hanen issued a temporary injunction against the implementation of those executive actions
USCIS released its long-anticipated L-1B adjudications policy memorandum that provides guidance on the L-1B classification, and supersedes and rescinds certain prior L-1B memoranda. Comments are due by May 8, 2015, and the memo is effective as of August 31, 2015. See http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/2015-0324-Draft-L-1B-Memo.pdf
The American Immigration Council reported that immigrant entrepreneurs and small business owners contribute to local economies, often forming the backbone of neighborhoods. As part of his November announcement on immigration executive action, President Obama signed a presidential memorandum that creates a White House Task Force on New Americans to explore ways to strengthen federal immigrant and refugee integration. The task force will engage with community, business, and faith leaders, as well as state and local elected officials, to “help determine additional steps the Federal Government can take to ensure its programs and policies are serving diverse communities that include new Americans.” On February 9, as part of a “call for ideas” to help shape this strategy, individuals and organizations from across the U.S. submitted a comprehensive set of recommendations to the Task Force on New Americans about how to encourage immigrant and refugee entrepreneurship and small business development.
– See more at: http://immigrationimpact.com/
The United States House of Representatives has passed a “clean” bill to fund the Department of Homeland Security through September 30, 2015. This is one less hurdle for the hopeful implementation of President Obama’s #executive actions on expanded #DACA and #DAPA.
USCIS issued a memorandum regarding the standards for adjudication of H-1B Petitions for nursing occupations. The memorandum can be found at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015-0218_EIR_Nursing_PM_Effective.pdf
The American Immigration Council reported that the political lawsuit challenging the legality of parts of President Obama’s Executive Action should fail for a variety of reasons. But the lawsuit has already succeeded in two respects. First, it won a dubious preliminary injunction from a lower court judge temporarily halting the program while the case proceeds. (Earlier this week, the Obama Administration filed an emergency motion asking the judge to lift his order and let the program move forward, setting the course for an appeal to a higher court.) Second, the lawsuit has ginned up precisely the kind of fear and confusion it was conceived to create.
For example, some Immigration and Customs Enforcement (ICE) officers are reportedly acting as if the injunction blocks not only expanded DACA and DAPA—but also the Department of Homeland Security’s (DHS) new November 2014 enforcement priorities. Those new priorities direct DHS officers to focus limited enforcement resources on national security and public safety threats, individuals convicted of a wide array of crimes (including some misdemeanors), as well as recent entrants and certain other immigration law violators. Immigration practitioners from various parts of the country report that a few ICE trial attorneys and deportation officers have indicated that the new priorities memo is no longer controlling. This is flat wrong. The new enforcement priorities are in full force and effect. ICE and Customs and Border Patrol officers who refuse to follow them are failing to adhere to policy.
It should have been clear from day one that the preliminary injunction did not and does not block the new enforcement policy. First, the Texas judge who granted the preliminary injunction expressly––and correctly––stated that the new enforcement priorities are “not subject to judicial second-guessing[.]” The court then wrote that DHS Secretary Jeh Johnson’s “decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch[.]” If any doubts lingered, Secretary Johnson’s unequivocal press release the next day should have laid them to rest. In it, he said that the new enforcement priorities “remain in full force and effect.” On Wednesday, in a televised town hall, President Obama said that immigration officers who fail to adhere to the enforcement policy may face consequences, much like members of the military who are expected to follow orders.
While it’s true that under the preliminary injunction ICE and other agencies within DHS may be prohibited from considering whether a particular immigrant is eligible for DACA or DAPA, it does not follow that people who are potentially eligible for those programs should be removed. Based on the way those programs are structured, virtually every person who qualifies for either DACA or DAPA will not fall within the enforcement priorities and should not be priorities for deportation as long as the new enforcement policy is in effect—regardless of what happens with the lawsuit.
After President Obama announced his executive actions, DHS established a process for reviewing enforcement decisions. That process is still in place. Advocates can and should play a role in identifying departures from policy to ensure that individuals are not wrongfully detained and deported.
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