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Immigration Update: Precedent Decision Impacts H-1B Workers & Employers

July 24, 2015

USCIS has issued a final guidance memorandum in regards to the precedent AAO decision in the Matter of Simeio Solutions, LLC. Per the Simeio decision, an amended H-1B petition must filed with USCIS when there is a material change in an H-1B worker's employment, which now includes a change in worksite location.

Employers are advised to carefully assess location changes before placing an H-1B employee at a new worksite. If an amended petition is required and the change in the place of employment occurs on or after August 19, 2015, that petition must be filed before the employee begins working at the new location.

There are situations in which an amended petition may not be necessary. For instance, if the H-1B employee is moving to a new job location within the Metropolitan Statistical Area (MSA) covered by the existing approved H-1B petition, a new H-1B petition is typically not required. Other situations in which an amended petition may not be necessary are outlined in the USCIS memorandum.

Compliance with Simeio is critical as the final guidance is now effective. Per the memorandum, any action required by H-1B employers is determined by the date of the H-1B employee's change in work location, as follows:

* Changes in the place of employment, pre- Simeio (on or before April 9, 2015): If an H-1B employee moved to a location of employment not covered by an existing, approved H-1B petition on or before April 9, 2015, USCIS will generally not pursue new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition regarding that move after July 21, 2015. However, in-process or decided denials and revocations will stand.

* Changes in the place of employment during "Safe harbor period" (April 10, 2015 to August 18, 2015): If an H-1B employee moved to a location of employment not covered by an existing, approved H-1B petition during the safe harbor period, the employer must file an amended petition by January 15, 2016.

* Changes in the place of employment, post-Simeio (on or after August 19, 2015): If an H-1B employee moves to a location of employment not covered by an existing, approved H-1B petition on or after August 19, 2015, the employer must file an amended petition before the employee begins working at the new location.

Please contact an MVA team member if you have any questions about filing an amended H-1B petition or any other related inquiries.