The USCIS has released a new memo describing its plans to implement and apply the Simeio Solutions case and it provides some relief for employers. The new memo effective as of July 21, 2015 states that the Simeio rule will not be applied retroactively. Changes in work-site location that occur after April 9th remain impacted. The memo also provided until Jan 15, 2016 to cure any moves. We applaud the USCIS for taking into consideration the input provided by its stakeholders and taking this remedial action.
On May 21,2015, the USCIS issued new policy guidance for H-1b employers. This guidance was issued following the April 9th Simeio Solutions precedent decision from the AAO which determined that a change in employment outside the area of intended employment was a material change and required the filing of an amended petition. This ruling was a major departure from prior USCIS policy and practice. The May 21st USCIS memo was designed to explain how that new policy will be implemented. The memo makes the following points:
1. An amended petition must be filed BEFORE an H-1b employee can be moved to a new worksite outside the original area of intended employment.
2. A deadline of Aug 19, 2015 has been established for all employers to file amended petitions to reflect the worksite locations of any H-1b worker who has been moved from their original petition location.
3. If an amended petition is pending and a subsequent move is made, a 2nd amended petition can be made and an employee moved. There is no requirement to obtain a decision in the 1st case before filing the 2nd case.
The Simeio Solutions decision has a huge impact on employers in the staffing industry and now this memo requires that an amended petition must be filed before moving an employee, the impact grows. Further, with the memo making it clear that the new policy will be applied retroactively to existing H-1b workers, albeit, with a 90 day grace period, the negative consequences to U.S. employers will be even larger and, the benefit to the coffers of the USCIS will be as well. With an economic impact to U.S. employers easily exceeding $100 million annually, it is unclear how the USCIS decision makers believe that this change in policy is not in violation of the Administrative Procedures Act and should not have gone through the formal rulemaking procedure. Whether any company or trade association challenges this new policy on APA grounds is yet to be seen.
As a practical matter, H-1b employers should take the following actions:
1. Confirm the current worksite locations of all H-1b employees and determine if that worksite has changed from the original petition and, if necessary, take steps to file an amended petition prior to Aug 19, 2015.
2. Communicate to sales and deployment teams that any change in worksite location will take at least 10 days and there is an economic cost to said move that must be considered.
In a decision released last week, the AAO declared that a work-site location change outside of the original MSA requires the filing of an amended H-1b petition. This change will have significant impact on staffing cos., many whom have followed DOL and USCIS HQ guidance which supported the conclusion that only the filing and posting of a new LCA was required when an employee’s work site changed. The I-129 form itself declares that an amended petition is not required when changing the location of an H-1b employee if you have filed and posted an LCA at the new work-site prior to the move. It is not known whether USCIS HQ supports this AAO decision or will issue further clarifying guidance to essentially overturn this decision. In the meantime, this decision leaves employers in an era of uncertainty. HLG will be hosting a teleconference for clients on Fri. April 17th to discuss this topic. More details will be released early this week.