On Tuesday, USCIS issued final guidance on a recent decision requiring new H-1B petitions for workers who change job sites, stating the agency will generally not punish employers that don’t file new petitions based on location changes that occurred before April 9. According to the new guidance, if an H-1B employee was moved to a new location on or before April 9, which is the date the Administrative Appeals Office handed down its decision in the Matter of Simeio Solutions LLC, the agency will generally not pursue adverse actions, even if the employer doesn’t file an amended petition.
However, USCIS will not cancel any adverse actions that it has already started or completed before July 21.
Under the AAO’s decision in Simeio, employers must file an amended petition, along with an updated Labor Condition Application, if an H-1B worker is moved to a significantly different location than the one listed on initial visa application documents. USCIS followed up with initial guidance in May, stating that an amended H-1B petition isn’t necessary if a worker’s new site is in the same metropolitan statistical area.
However, the agency said the decision would apply retroactively and that employers whose H-1B workers moved before Simeio had until Aug. 19 to file an updated version. This created major concern for many, as some employers would have to sort through hundreds of H-1B petitions to figure out which workers would need retroactive amendments. Luckily, with the final recent guidance, USCIS said that for the most part, it will not go after employees who hadn’t filed new H-1B petitions for workers who moved before Simeio came out, after July 21.
If an employer does want to file an amended H-1B petition based on a worksite change that happened before Simeio came down, the company can do so by Jan. 15, 2016. For petitioners whose H-1B employees changed work sites after April 9 but before Aug. 19, a new or amended petition will need to be filed by Jan. 15 as well. Worksite changes that occur after Aug. 19 will require an amended petition before the H-1B employee begins working at a new location.
If you have questions or concerns regarding your H-1B status, please contact our office to schedule a consultation with one of our attorneys today!