On April 9, 2015, the precedent decision Matter of Simeio Solutions, LLC (Simeio) was issued. This decision represents the USCIS position that H-1B petitioners are required to file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition. (Please be noted: Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment. )

 

On July 21, 2015, USCIS issued a Policy Memorandum serving as a final guidance of this matter. Here are some brief highlights: 

 

 

• A move within an “area of intended employment”: If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. However, the petitioner must still post the original LCA in the new work location within the same area of intended employment. 

 

• Short-term placements: Under certain circumstances, a petitioner may place an H-1B employee at a new worksite for up to 30 days and in some cases 60 days (where the employee is still based at the "home" worksite). 

 

• Non-worksite locations: If H-1B employees are only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered to be a “non-worksite” if: 

 

o The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars; 

 

o The H-1B employees spend little time at any one location; or 

 

o The job is “peripatetic in nature,” such as situations where their job is primarily at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive.” 

 

 

• Pre-Simeio changes in the place of employment requiring certification of a new LCA: If a petitioner’s H-1B employee moved to a new area of employment (not covered by an existing, approved H-1B petition) on or before April 9, 2015, 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 regarding that move after July 21, 2015. 

 

• Safe harbor period: If a petitioner wishes, notwithstanding the above statement of discretion, to file an amended or new petition to request a change in the place of employment that occurred on or before April 9, 2015, the petitioner may file an amended or new petition by January 15, 2016. USCIS will consider filings during this safe harbor period to be timely for purposes of the regulation and meeting the definition of “nonimmigrant alien” at INA section 214(n)(2). 

 

• Post-Simeio changes in the place of employment requiring certification of a new LCA:

 

o If by January 15, 2016 (deadline for filing) a petitioner does not file an amended or new petition for an H-1B employee who moved to a new place of employment after the date of publication of April 9, 2015 but before August 19, 2015, the petitioner will be out of compliance with DHS regulations and the USCIS interpretation of the law, and thus subject to adverse action. Similarly, the petitioner’s H-1B employee will not be maintaining nonimmigrant status and will also be subject to adverse action. 

 

o If the change in the place of employment 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. 

 

Source: USCIS Website