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. We review this decision’s various elements and implications 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 case 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: An amended or new petition is generally unnecessary if the move is within the same geographical area. 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 an existing H-1B petition did not cover them.
- 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 impacted the landscape of H-1B petitions. Both petitioners and beneficiaries need to understand the nuances of this decision to ensure compliance and safeguard their immigration status.
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