H-1B petitioners, particularly those in the staffing/consulting industries, should be making plans now to amend the petitions of any H-1B workers who have moved or will be moving from the work locations originally listed in their I-129 applications. For anyone who is not yet aware of the April 9 AAO decision in Matter of Simeio Solutions, H-1B employers are now required to file an amended I-129 petition when a beneficiary’s geographic work location changes beyond the Metropolitan Statistical Area (MSA) covered in the original approved application.
Below is our office’s discussion of this recent policy change, and answers to frequently asked questions concerning the best practices for H-1B employers moving forward.
The Previous Practice Regarding Changes in Work Location
According to 8 CFR §214.2(h)(2)(i)(E), an amended H-1B petition should be filed if there are “material changes in terms and conditions of employment or training or the alien’s eligibility as specified in the original petition.” The issue at the heart of Matter of Simeio Solutions is whether a change in geographic work location constitutes a “material change.” For the ten or so years preceding this decision, employers lacked definitive guidance from USCIS on the matter of whether a change in an H-1B worker’s geographic work location necessitates filing an amended I-129 petition. In the absence of clear guidance, most employers relied on unconsolidated statements from Service officials that most closely addressed this issue, particularly statements made by INS Business & Trade Director Efren Hernandez in a 2003 letter, in which he stated that “an amended Form I-129 petition would not be required simply on the basis of [a] geographic move. As long as the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are met, no amended petition would be required….”
Therefore, for the past decade, H-1B employers have followed the practice suggested by Mr. Hernandez of obtaining certified Labor Condition Applications from the Department of Labor to document a change in geographic work location. In addition, for the past several years, many employers have practiced filing amended petitions preceding a visa application by the beneficiary at a consulate abroad, as Department of State guidance appeared to suggest that an amendment was required for a change in project or a change in the succession of contracts for the beneficiary’s assignment.
The Current Policy, After Matter of Simeio Solutions
On April 9, 2015, the AAO decided Matter of Simeio Solutions, which overrides any previous USCIS memos, letters, or guidance on the work location issue, including the Hernandez letter. In this decision, the AAO concluded that “a change in the place of employment of a beneficiary to a geographical area requiring a corresponding [LCA] be certified to [USCIS] with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change….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.” The AAO’s main reasoning appears to be based on the correlation between geographic work location and the prevailing wage – if the work location changes, so will the eligibility of the beneficiary for H-1B status, in relation to his or her salary level.
Q: Does this decision apply to changes in work location within the same Metropolitan Statistical Area (MSA)?
A: MSA typically constitutes the same county. If the new work location is within the same county as the work location listed in the approved petition, then an amended petition is not required, as the location change would not affect the prevailing wage level.
Q: What does an amended petition entail?
A: An amended petition is very similar to any other H-1B petition – all the same forms and supporting documents are required, and USCIS can review it anew; it is not required to give deference due to the prior petition being approved. The company will need to supply project documents (contracts, work orders, vendor/client letters) as with any other petition. The main difference is that the base filing fee is $325, if an extension of status is not requested.
Q: How soon will this decision be implemented?
A: USCIS could consider this effective as of April 9, although it has not yet announced particular enforcement plans beyond its normal compliance inquiries. We recommend that H-1B petitioners discuss the decision with their company’s attorney in order to develop a strategy for complying with the new policy.
Q: How soon before/after the work location change does the amended petition need to be filed? Does it need to be approved prior to the work location change?
A: The AAO decision only states that “having materially changed the beneficiary’s authorized place of employment to geographical areas not covered by the original LCA, the petitioner was required to immediately notify USCIS and file an amended or new H-1B petition.” It does not clarify or define “immediately;” however, the general understanding is that USCIS will most likely require that the amendment be filed prior to the beneficiary’s start date at the new location.
The petition most likely does not need to be approved in order for work at the new location to start, pursuant to H-1 portability rules (these are the same rules that allow an H-1B transferee to begin work with a new employer upon filing the change of employer petition).
We recommend that companies notify their immigration counsel as soon as possible once a new work location is confirmed, in order to allow as much time as possible for the amendment petition to be prepared and filed prior to the employee’s start at the new location.
Q: What about my employees who have already changed work locations without amending the petition?
A: It is advisable to begin the process of amending the petitions as soon as possible. As stated previously, USCIS has not given specific information on how/when the new AAO decision will be enforced, but for any compliance inquiries that might be issued in the future, companies should be able to argue that amendments were not filed prior to April 2015 because of the state of guidance on this issue, as it existed at that time. If companies can show that they began taking steps to amend within a reasonable amount of time after the April 9 decision, in our opinion, USCIS should not penalize companies for late-filed amendments.
For beneficiaries whose H-1B status expires this year, companies can consider the option of filing combined amendment + extension applications within the next couple of months, rather than extension-only applications. This will take care of the need for amendment due to location change, as well as the extension of status request that the company would have filed later in the year.
Q: Do you recommend that the petition be filed in premium or regular processing?
A: This will primarily depend on the expected duration of the new project. We recommend filing shorter-term project changes (probably 6 months or less) in premium processing, to ensure that the beneficiary is still on the project to provide additional information for an RFE, if one is issued. If the project will definitely continue for 9 months or more, regular processing is probably sufficient.
While these Q&As may provide general guidance for H-1B petitioners/beneficiaries who are affected by the AAO decision, we strongly urge direct communication with immigration counsel to discuss a specific compliance strategy going forward.
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.
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