U.S. Consular Officers Told To Enforce Simeio H-1B Amendment Requirements

In response to the changed H-1B petition amendment requirements following the Simeio decision, the U.S. State Department has circulated a cable to U.S. Consulates worldwide with specific guidance to consular officers on how to address H-1B visa stamping petitions where there is change of employment.      While the cable does not create new policies, it specifically instructs consular officers to deny H-1B visa stamp applications which are not in compliance with Simeio.

Simeio Decision Background

The April 9, 2015 AAO decision In Matter of Simeio Solutions, LLC (PDF copy) put many H-1B employers who place H-1B workers at third-party worksites in a position to scramble and assess their current level of compliance with the H-1B regulations.  Afterwards, in a July 21, 2015 Policy Memorandum, USCIS provided an amended and final set of instructions as to how USCIS would treat H-1B petitions where the employee changes worksite locations (see our full analysis of the final guidance).

When is H-1B Amendment Required?   An H-1B employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.   In other words, doing an LCA only for the changed worksite location is not sufficient – an H-1B amendment filing prior to beginning work at the new worksite location is required.

When is an H-1B Amendment Not Required?   According to the USCIS guidance, a new H-1B amendment is not required for if the new worksite location is within the same Metropolitan Statistical Area (MSA), if the placement is short-term (a few days only) or for non-worksite locations (see our earlier analysis for more details).

Safe Harbor for Compliance

If the H-1B Worksite Change Happened On or Before the April 9, 2015 Simeio Decision.   For H-1B petitions where the worksite change happened before April 9, 2015, USCIS has indicated that they will not pursue new adverse actions (e.g., a denial or a revocation).    Adverse actions initiated or completed before July 21, 2015 (the date of the Memo) will remain valid.   Essentially, USCIS will not reopen H-1B cases denied or revoked over the past three months due to non-compliance with Simeio and USCIS will not retract active attempts to deny or revoke an H-1B petition due to non-compliance with Simeio.   But for those H-1Bs where the worksite change happened before April 9, 2015 and are otherwise in compliance, USCIS is saying that they will not take new adverse action.

If the H-1B Worksite Change Happened After April 9, 2015 and Before August 19, 2015.   In this situation, USCIS provides a safe harbor compliance period until January 15, 2016 for employers to file an H-1B amendment and become compliant.   H-1B amendments filed before the January 15, 2016 safe harbor period deadline will be considered timely.   After the safe harbor period ends, any H-1B petitions where the worksite change happened after April 9, 2015 will be out of compliance and subject to adverse USCIS action (including for the H-1B worker to be considered to be in violation of H-1B status).

If the H-1B Worksite Change Happened After August 19, 2015.  This is when USCIS will expect all H-1B petitioners to file H-1B amendment or new petition before an H-1B worker starts working at the new worksite location.    No grace periods or safe harbor applies.

Consular Officers Instructed to Inquire About Workplace Location Changes (and Dates) to Determine Simeio Compliance

As  result of the new guidance, if a U.S. visa officer becomes aware that there are worksite location changes, the visa officer is now is required to verify that the H-1B employer has taken the appropriate steps to be in compliance with Simeio.    Accordingly, the visa officer may ask for information and documentation to establish the history of worksite locations, and based on the timing of any worksite changes, issue an approval of the visa stamp if there is compliance with the Simeio decision.

We believe that the most problematic may be the post-August 19, 2015 requirement to have an H-1B amendment filed before the placement at the new worksite location takes place.   Based on this, a visa officer may ask questions (or review documentation) which may suggest that an H-1b worker started working at a new worksite location shortly before an H-1B was filed (perhaps while the LCA was in progress) and this, under the new guidance, may cause an H-1B visa stamp to be denied because, technically, it does not comply with Simeio’s requirement to have an amendment before starting at the new worksite even if USCIS has approved the H-1B amendment petition.

As a result, we continue to stress the importance of adequately planning for changes in worksite locations well in advance and filing the H-1B amendments before the H-1B worker starts working at the new worksite location.

Conclusion

We are closely monitoring how U.S. consular sections have been and will be responding to this guidance during H-1B stamping applications.   We ask our clients and readers to share their H-1B stamping experience if it involved change in worksite location.    We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.