In April 2015, USCIS’ Administrative Appeals Office (AAO) set a precedent with the decision in the Matter of Simeio Solutions, LLC (Simeio). This ruling clarified the circumstances under which an amended or new H-1B petition is required due to a change in an H-1B worker’s place of employment. Today, we dissect the various elements and implications of this pivotal decision to provide clarity for employers and employees alike.
What Does the Simeio Decision State?
- Material Change in Employment: A change in the place of employment requiring a new Labor Condition Application (LCA) is considered a material change under sections 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
- Requirement for Amended Petition: An amended or new H-1B petition must be filed in the event of a material change in the terms and conditions of employment.
This decision emphasized that H-1B petitioners must file an amended or new petition before transferring an H-1B employee to a different location not covered by an existing, approved H-1B petition.
Geographical Changes
If the H-1B employee changes the place of employment to an area requiring a new LCA, an amended or new H-1B petition is compulsory, even if a new LCA is certified and posted at the new work location.
When Immediate Work Can Begin
After correctly filing an amended or new H-1B petition, the H-1B employee can start work at the new location without waiting for a final decision, provided other legal requirements are met.
Exceptions to the Rule
- Move within Area of Intended Employment: If the move is within the same geographical area, an amended or new petition is generally not needed. However, the original LCA must still be posted at the new location.
- Short-term Placements: H-1B employees can be placed at a new worksite for up to 30 or 60 days without a new LCA or amended petition.
- Non-worksite Locations: No amended or new H-1B petition is needed if the location is not a regular worksite and does not involve material changes in employment.
Compliance Guidelines
- Pre-Simeio Moves: USCIS will generally not pursue adverse actions for moves made before the Simeio decision if they were not covered by an existing H-1B petition.
- Safe Harbor Period: Petitioners had until January 15, 2016, to file an amended or new petition for changes in employment location that occurred before the Simeio decision.
- Post-Simeio Moves: Failure to file an amended or new petition for moves after the Simeio decision may result in noncompliance and adverse actions.
Additional Considerations
- Pending Petitions: If an amended or new petition is still pending, another one can be filed to change worksite locations.
- Travel: Refer to past guidance for travel procedures while an amended or new H-1B petition is pending.
Conclusion
The Matter of Simeio Solutions, LLC has cast an indelible impact on the landscape of H-1B petitions. It is vital for both petitioners and beneficiaries to understand the nuances of this decision to ensure compliance and safeguard their immigration status.
For any legal queries or to navigate through this complex landscape, consider consulting with a qualified immigration attorney well-versed in the intricacies of H-1B petitions and USCIS regulations.
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