Simeio RFEs: How to Handle “Simeio” RFE Due to Late H-1B Amendment Filing?

In our office, and in the broader H-1B community, we are seeing instances and reports of H-1B petition RFEs aimed at ensuring compliance with the Simeio-line of guidance issued by USCIS in 2015. Specifically, we are seeing RFEs on H-1B petitions (amendments, mostly, but also for extensions) where USCIS is questioning the timeliness or the lack of the H-1B amendment filings. Our office has handled a number of such RFEs and we share our experience and thoughts on how to best handle them.

Simeio 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).

USCIS RFEs Focus on Late or Missing Amendment Filings After Worksite Location Change

Our office has been seeing and handling an increasing number of H-1B petition RFEs focused on checking if the employer is in compliance with the Simeio requirements.     Usually, the underlying facts are similar:  an H-1B employee starts working at a new worksite location (outside of the MSA) and the H-1B employer does not file the required H-1B amendment prior to the employee’s first day of work at the new worksite.  In some cases the amendment is filed late by a few weeks, in some cases the amendment is filed a few months late.    We have also seen cases where the Simeio RFE is issued for H-1B extensions.

The USCIS RFE often reads like this:

If the change in the place of employment (not covered by an existing, approved H-1B petition) occurs on or after August 19, 2015, then the petitioner must file an amended or new petition before the employee begins working at the new location.

In this case, although the beneficiary appears to have moved to work for another end client at another location different than the previously approved location stated in the previously approved petition and its corresponding LCA after [LCA date], there is no evidence that you have filed an amended petition prior to the employee begins working at the new location.

Therefore, it appears that you have not complied with the USCIS’ previously approval as well as United States Department of Labor (“USDOL”) requirements governing labor condition applications by filing labor condition applications and amended I-12 9 petitions for the period of employment and locations at which beneficiary had/ has worked.

It is requested that you provide an explanation and submit evidence to establish that you have complied with the terms and conditions of the labor condition applications and the USCIS and USDOL’s requirements.

Strategy for Responding to Simeio H-1B RFEs

Obviously, each case requires separate analysis and response, but there are generally three ways to respond to these RFEs:

New Worksite is Within the Same MSA or Placement Took Place Before April 9, 2015.   The easiest cases may be those where the new worksite location is within the same metropolitan statistical area OR if the new change took place prior to the Simeio decision on April 9, 2015.

USCIS Alleges Wrong Facts or Dates. Slightly more challenging are the cases where USCIS is incorrect in their assertion that the placement at the new workplace began prior to the filing of the H-1B petition.  In this case, the response may have to focus on explaining and documenting that the placement at the new worksite did not begin prior to the H-1B amendment filing.    Evidence can include timesheets, letters from end client, travel or relocation records, and similar.

New Worksite Placement After April 9, 2015 and H-1B Petition Filed After Employee Started Work.  This situation presents the greatest challenge because, factually, USCIS may be on solid ground in challenging the late amendment filing based on Simeio.    When we have been able to resolve this kind of RFEs successfully, our main focus has been to request discretionary approval and demonstrate, to the extent possible, the employer’s efforts (even if incomplete) to comply with Simeio.   At the same time,  as the case circumstances permit,  it is worth requesting a discretionary approval on a nunc-pro-tunc basis which essentially asks the government to “forgive” prior non-compliance and grant status.     Finally, it is worth asking specifically that even if USCIS determines that the petition was filed late (non-compliance with Simeio) then the H-1B petition component should be still approved even if the status (I-94, where requested) component of the petition should be denied.     This way the beneficiary may be able to “correct” the issue by departing and reentering the U.S. using the new H-1B petition approval and with a valid H-1B visa stamp.

If our office can assist with an RFE, please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Increased Scrutiny Requires Careful Planning and Timely Amendment Filings

Our office has been drawing a lot of attention to the Simeio guidance from the time it was announced in early 2015 and we feel that our efforts have helped many employers and individuals avoid this kind of scrutiny.    Not only is USCIS starting to enforce the Simeio guidance more strictly, but U.S. consular officers have also been instructed to watch for and enforce Simeio compliance during the H-1B visa stamping process.

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 will continue to closely monitor how USCIS and consular sections will adjust their adjudications.   We ask our clients and readers to share their H-1B USCIS RFE and 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.