FROM “MUST” TO “MAY” ON RETROACTIVITY: USCIS ISSUES FINAL GUIDANCE ON WHEN TO SUBMIT AN H-1B AMENDED PETITION UNDER SIMEIO SOLUTIONS

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As discussed in our recently co-authored Article, H-1B AMENDMENTS POST-SIMEIO SOLUTIONS: WHY CIS SHOULD CONSIDER TAKING OFF THE RETROACTIVITY ASPECT FROM THE “DRAFT” GUIDANCE, United States Citizenship and Immigration Services (USCIS) in its revised Final Guidance, that was promulgated on July 21, 2015, suggests that the Simeio Solutions decision[1]will not be applied retroactively, which is a significant departure from the USCIS’ Draft Guidance.



As previously discussed in our above-mentioned article, in Simeio Solutions, the AAO specifically stated that when H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application (LCA) for nonimmigrant workers to the Department of Homeland Security (DHS), this change may affect the employee’s eligibility for H-1B status; it is therefore a "material change".



Because the decision was not very clear as to whether the AAO only referred to a move outside the Metropolitan Statistical Area (MSA), the DHS Ombudsman call on April 30th, 2015, clarified that amended petitions will be required only for movement of H-1B workers outside the MSA listed on the LCA. Then, just when the new changes regarding H-1B amendments started to sink-in, came the surprise. On May 21st, 2015, USCIS issued guidance instructing employers to submit amended petitions for employees who changed worksite locations prior to the issuance of the Simeio Solutions decision.



Specifically, employers were asked to submit an amended H-1B petition if they, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment. The employers were asked to submit such amended petitions by August 19th, 2015. Six days later, on May 27th, 2015, USCIS updated its guidance to reflect that the guidance was in a “draft” form, and that comments would be accepted “for a limited period of time.”



USCIS’ final guidance provides the much needed relief sought by many companies (especially technology companies), employing a considerable amount of their workforce in the United States on H-1B visas. Of course, the new updates are welcome news since it would have been a significant cost in time and effort to employers for filing amended H-1B petitions on behalf of their employees for transfers that were made prior to the issuance of the Simeio Solutions decision.



So, how does the new guidance helps H-1B employers, and when are they required to submit amended H-1B petitions? As per the new guidance, if an H-1B worker moved to a new location not covered by the existing petition prior to or on April 9th, 2015, the date on which the Simeio Solutions decision was published, the “…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.” Simply put, an H-1B amended petition involving a location change outside of an MSA would be required if the change happened after April 9th, 2015. However, it needs to be noted that this guidance will not protect H-1B employers if an adverse action was initiated prior to July 21st, 2015.



Further, the recent Memorandum provides a Safe Harbor Period for all moves requiring an H-1B amended petition, which happened between April 9th, 2015, and August 19th, 2015. If any move took place during this period of time then petitioning employers must submit H-1B amended petitions by not later than January 15th, 2016. Additionally, any change in the place of employment (outside the MSA listed on the LCA) after August 19th, 2015, shall require an amended H-1B Petition. For quick reference, here is a helpful chart of when H-1B amended petitions need to be submitted.


























Date of Employee(s) Movement Outside The MSA Listed on LCA.

What Action Needs to be Taken?

On or before April 9, 2015.

No amended H-1B petition required.

After April 9, 2015, but prior to August 19, 2015.

Must submit H-1B amended or new petition by January 15, 2016.

On or After August 19, 2015.

Must submit H-1B amended or new petition.


[Original table changed to correct factual error - Editor]


The revised final guidance reconfirmed that an amended H-1B petition is not required if the geographical move is within the MSA. However, the petitioner is required to post the original LCA at the new work location. Similarly, an amended H-1B petition is not required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration at a location not listed on the LCA. Further, an H-1B amended petition need not be submitted to USCIS for short-term placements of up to 30 days, or in some case up to 60 days (where employee is still based at the “home” worksite).



Last but not the least; the revised final guidance confirms that if an employer’s amended H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition.






[1]Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).










Reprinted with permission.






About The Author









Michael Phulwani
Michael Phulwani is admitted to practice law in India, New York and New Jersey. He has been practicing law for about 39 years in the field of Immigration and Nationality Law. He is admitted to practice law in New Jersey, New York, and India. He maintains law office in Maywood New Jersey, and in Mumbai India.. He has successfully handled many complex immigration matters with the Immigration and Naturalization Service and consular processing cases at American Consulates abroad especially consular posts in India. Michael Phulwani is the author of 'Guide to U.S. Visas' and numerous articles published in various ethnic newspapers and other publications in the U.S. and abroad such as News India, India Tribune and Gujarat Times. He has also co-authored a series of articles on American Consulates in India, Pakistan and Bangladesh published in "The Visa Processing Guide" by American Immigration Lawyers Association.







David Nachman
David Nachman is the founder and one of the Managing Attorneys in the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.- and Canada-bound workers. Attorney Nachman and fellow lawyers contributed to landmark decisions in such cases as Berger v. Berger and Woolley v. Hoffman-La Roche, Inc. The NPZ Law Group is an International Immigration Law Firm with offices in NJ and NY. The Firm has affiliated offices in Canada and India. The Firm specializes in providing assistance with waivers, removal defense, asylum, PERM, immigrant (Green Card) and various nonimmigrant visas, and immigration compliance matters for employers and employees and their families. Immigration professionals in NPZ Law Group speak many foreign languages including, but not limited to: Spanish, French, Japanese, Korean, Tamil, Hindi, Gujarati, Nepalese, Slovak, Czech, Russian, Polish, Tagalog, Hebrew, Chinese, German and English.







Rabindra Singh
Rabindra K. Singh is a Staff Attorney in the Ridgewood, New Jersey, office of Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. He is admitted to practice law in New Jersey, and India. Rabindra's work at NPZ focuses on complex employment and family-based immigration matters. From individuals to startups to multinational corporations, he has advised clients in a variety of industries, with a primary focus on the high tech, engineering, manufacturing, pharmaceutical, and financial industries. He represents clients before various immigration agencies of the Department of Homeland Security, the Department of Labor, and the Department of State. Rabindra's professional work experience also entails working with one of world's largest Information Technology (IT) Company, where he played a pivotal role in initiating the in-house processing of nonimmigrant visas. An avid writer, Rabindra writes frequently for both print and electronic media. His articles have appeared in the prestigious New Jersey Law Journal. In addition, he is a frequent contributor to the ILW.COM. Additionally, he actively writes articles for ethnic Indian newspapers.





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