A New Day for New H-1B Work Locations

On April 9, 2015, the Administrative Appeals Office (“AAO”) delivered a precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) that will significantly affect the practice of H-1B Employers.

This case concerns the H-1B Petition of Simeio Solutions LLC (“Simeio”), a provider of information technology services. The original I-129 Petition and corresponding Labor Condition Application (“LCA”) listed the H-1B Employee’s work location the Company’s address in Long Beach, California. USCIS approved this Petition but eventually issued a Notice of Intent to Revoke (“NOIR”) when discrepancies between the H-1B Employee’s actual work location and the address provided in the approved H-1B Petition came to light. In response to the NOIR, Simeio submitted LCAs for two worksites not listed in the approved petition, indicating that the H-1B Employee would be working at these addresses for the duration of his status. Prior USCIS guidance had indicated that, in many circumstances, filing a new LCA to cover a different work location was sufficient for a change of work location and that an Amended H-1B Petition was frequently unnecessary.

However, USCIS revoked Simeio’s H-1B Petition on the basis that these new work sites constituted a “material change” that required Simeio to file an Amended H-1B Petition, which Simeio did not provide in its response to the NOIR. On appeal, the AAO agreed with USCIS, holding that “a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material for both the LCA and the Form I-129 visa petition.” Accordingly, after this decision, a change of work location outside of the Metropolitan Statistical Area (“MSA”) or “area of intended employment” covered in the approved H-1B Petition will require the filing of both a new LCA and an Amended H-1B Petition.

USCIS recently published guidance providing further clarity on the scope and enforcement of the Simeio Solutions decision. First, Simeio Solutions does not alter the long-held rule that H-1B Employers need not file Amended H-1B Petitions or even file new LCAs for H-1B Employees in any of the following three situations:

1. H-1B Employees who are moving to a new job location within the same MSA or “area of intended employment” as defined in 20 CFR 655.715 and covered in the approved H-1B Petition;

2. H-1B Employees who are placed at a work location not listed in the approved H-1B Petition for up to 30 days (and, in some situations, for up to 60 days); and

3. H-1B Employees traveling to “non-work locations, such as management conferences, staff seminars, and other employee developmental activities, as well as locations where the H-1B Employee spends little or occasional, short periods of time.

Second, USCIS will apply Simeio Solutions to H-1B Employers who did not file Amended H-1B Petitions for H-1B Employees who changed work locations before the AAO handed down this decision. USCIS has stated that it will not take adverse action against H-1B Employers who “in good faith, relied on prior non-binding agency correspondence and did not file and amended petition” in this situation, but that such H-1B Employers must file an Amended H-1B Petition that covers the H-1B Employee’s new work location no later than August 19, 2015. H-1B Employers who moved H-1B Employees without filing an Amended H-1B Petition at the time Simeio Solutions was decided must also file Amended H-1B Petitions by August 19, 2015.

If you have any questions or concerns regarding H-1B compliance, please feel free to contact our office and we will be happy to assist you.