On May 21, 2015, USCIS came out with interim guidance interpreting the Matter of Simeio Solutions decision of April 9, 2015. Under the Matter of Simeio Solutions precedent decision employers are required to file an amended petition before placing an H-1B employee at a new worksite in a different Metropolitan Statistical Area (MSA).
When Must You File an Amended Petition?
According to the May 21, 2015 guidance, employers are given until August 19, 2015, to file Amended H-1B Petitions, if the H-1B employee has either already moved or will be moving to a different MSA.
Important Points to Note
• It is important to note that once the amended petition is filed, the H-1B employee may immediately begin to work at the new worksite location and will not have to wait for a final decision on the amended petition. So, it is not necessary to file Amended Petitions in Premium.
• Additionally, if the H-1B amended petition is denied, the employee may still work at the original worksite so long as they are still able to maintain valid H-1B status.
• Also, an employer may file a second Amended Petition (to change worksite again) even if the first Amended Petition is pending – this is common in IT consulting where the project may end even before the Amended Petition is approved.
When are Amended Petitions NOT Required?
There are several exceptions in which filing an amended petition is not necessary.
• Move within MSA: If the H-1B employee is moving to a new job location within the same MSA, a new LCA is not required. The original LCA should still be posted in the new job location — It is a good practice to obtain a new LCA even if the new worksite is within the same MSA.
• Short-Term Placements: In addition, if an H-1B employee is only relocated for a short amount of time (typically 30 days, and in some cases up to 60 days), then a new LCA is not required and an amended petition should not be filed.
• Non-Worksite Locations: The last exception pertains to H-1B employees who are only traveling to a non-worksite location with the intentions of participating in seminars, conferences, or any other job-related developmental activity for a short amount of time (either 5 or 10 days).
The August 19 deadline allows employers additional time to come to compliance with the Amendment requirements under Matter of Simeio Solutions. As always, please feel free to reach out to GLF, if you have any questions or concerns or need additional guidance in this area.