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.
The long-standing rule remains that any material change in the terms and conditions of employment trigger a need to amend or file a new H-1B petition. Simeio clarifies that any change in the location of employment which requires the certification of a new LCA also requires a new or amended H-1B petition. Many immigration attorneys had previously relied upon unofficial guidance from USCIS which seemed to indicate that when an H-1B worker is relocated, the employer need only obtain a new certified LCA for the new location prior to the employee’s move, without the need for amending the H-1B application itself. This idea came from a 2003 letter sent by USCIS’ Efren Hernandez. (“Hernandez Letter.”) The guidance from the Hernandez Letter was explicitly superseded by Simeio.
Implications of the Simeio Decision
Now, before an H-1B employer moves an employee to a new worksite outside of the intended area of employment, several steps must be taken. The employer must have an LCA for the new location certified by the DOL. The employer must assure it is still paying the beneficiary at least the prevailing wage for the new location. And now, the employer must amend (or file anew) the employee beneficiary’s H-1B petition to reflect the changes. The employee may begin working at the new location as soon as these documents have been filed. That is, there is no need to wait for approval of the amended H-1B. However, if the petition is denied, the employee must return to the old work location, or s/he is immediately considered out of status.
In order for an H-1B visa to be approved, the petitioner must show that hiring the specialty worker will not affect the local labor market for American workers. When the petitioner certifies an LCA, it demonstrates she will be paying the H-1B worker at least the prevailing wage in that locality for the job, and that American workers were found to fill that position. As the prevailing wage and availability of qualified workers vary across locations, USCIS reasons why moving a job to a new location necessitates a new LCA. Since the eligibility for an H-1B visa is dependent upon a certified LCA, USCIS further reasons that an existing H-1B petition must be amended or replaced once the LCA for the job changes.
Immigration attorneys, H-1B employers and employees who were following the pre-Simeio guidance now face some difficult analysis in deciding whether a relocation requires a new LCA, and therefore an amended or new H-1B application. It remains true that relocations within the same metropolitan statistical area (MSA) require neither a new LCA nor amended H-1B petition. In these instances, the employer need only post the existing LCA in two places at the new jobsite location.
Moving forward, if an H-1B employee is going to be working at a new location, careful analysis of the situation is necessary. The Department of Labor (DOL) defines an area of intended employment as “an area within normal commuting distance of the place of employment.” A move to any other location within the same MSA is automatically included in the intended area of employment, and no new LCA nor H-1B application is necessary. A move to a location outside of the MSA but within commuting distance of the original worksite requires no change except for the existing LCA to be posted. “Normal commuting distance” is not specifically defined, so it would be up to the petitioner making this claim to provide supporting evidence if USCIS ever questions such a move.
On July 21, 2015, USCIS issued a policy memorandum to explain its expectations in light of the Simeio decision. (Policy Memorandum 602-0120.) It gives specific timeframes for workers who were relocated in the months following the decision to follow. Any worker who was relocated after the April 9th decision, but before August 19th falls within a “safe harbor.” That is, these workers have until January 15, 2016 to update their LCAs and petitions. This decision is so new that USCIS is asking anyone facing a Notice of Intent to Revoke, Requests for Evidence, or similar proceeding due to this issue to include a copy of USCIS’s own guidance memo with their amended petition.
Any worker who was moved on or after August 19th, however, should have filed these documents before the move. If they did not, they are already out of status, and face a difficult time making the amendment now. Absent applicable exceptions described below, immigration attorneys, H-1B employers and employees who never filed an LCA at all for a new work location may need to file a new H-1B petition to avoid a denial of an amended H-1B petition in those situations.
Some circumstances are exceptions to the amended petition requirement. One such circumstance is if the new work location is not actually a “place of employment” requiring an LCA. This is true if the employee beneficiary is only at the location for “employee developmental activities” such as training and staff seminars. In addition, employees whose jobs are peripatetic—that is, they require frequent, but short-term travel by nature—are not considered to be working at a new job location. Finally, employees on short-term assignments at another location are able to avoid the amendment process, provided they remain within the guidelines for short-term placement. This means they must not work in the second location for more than thirty days in a year, or sixty days under certain circumstances.
Some practitioners lament not only the practical effects of Simeio decision, but also the method by which it is being implemented. Simeio essentially changes the rules for H-1B employers and workers without the usual period for public comment that is supposed to accompany changes in immigration regulations. By changing policy without the promulgation of a new or amended regulation, immigration attorneys, businesses, and advocates were unable to voice their concerns about the changes. In addition to its intrinsic value as a semi-democratic process, the comment and review period arguably helps USCIS identify and address potential questions and issues before implementation. It will be interesting moving forward to see how USCIS handles any difficulties implementing the decision.