October 19, 2015
H-1B visas are nonimmigrant visas granted to bring a limited number of “specialty workers” to the United States each year. To qualify as a specialty worker, a beneficiary typically needs a degree and/or specialized training. The H-1B visa program allows American businesses to fill positions with highly-qualified foreign workers while simultaneously protecting the interests of U.S. workers.
On April 9, 2015, the USCIS Administrative Appeals Office (AAO) issued its precedential decision in Matter of Simeio Solutions. (26 I&N Dec. 542, 2015.) This case has significant implications for H-1B workers and employers, as it changes the obligations of H-1B employers if the location of the worksite changes after the petition is filed.
The Matter of Simeio Solutions
In this case, a would-be H-1B worker requested an H-1B visa at U.S. Embassy office in India, and provided information that contradicted the petition filed on his behalf. The Embassy returned his petition to California for review, and USCIS began an investigation. USCIS visited the address that was filed as the place of employment, and found the company had moved to a new location. USCIS issued a Notice of Intent to Revoke (NOIR) the approved H-1B petition. The petitioner responded with two new work locations and corresponding Labor Condition Applications (“LCAs”) as the places of employment for the beneficiary. Both locations were outside of the Metropolitan Statistical Area (MSA) of the original petition, and both areas had higher prevailing wages. USCIS determined (and the AAO later affirmed in the Simeio opinion) that this constituted a material change in the terms of employment which required a new or amended H-1B petition.
The details of the case are much less significant that the ultimate holding. Simeio states definitively that a qualifying relocation of the job of an H-1B beneficiary to a new geographical area of employment absolutely triggers the requirement for a new LCA and an amended H-1B petition. Precisely what constitutes a “new area of employment” is tricky, but crucial, and will be explored in depth.
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