The United States Citizenship and Immigration Services (USCIS), on July 21, 2015, issued
Final guidance on measures it has enacted on when an H-1B employer must file an
amended or new H-1B petition following the precedent decision in the Matter of Simeio
Solutions, LLC (decided on April 9, 2015).
The USCIS argues that the AAO decision merely reaffirms existing regulations. However,
through this memorandum the USCIS provides important clarification on how the
implementation will be enforced going forward. Generally, if a new Labor Condition
Application (“LCA”) needs to be filed due to a change in job location or a material change
in the terms of employment, it will trigger the need for the filing of an amended petition.
Additionally, the USCIS has provided the following guidance:
- If an employee changed job locations on or before April 9, 2015 and all other H-1B conditions of employment are being met (including a certified LCA with the new location), then an amendment is not necessarily required.
- USCIS will “generally not pursue new adverse actions solely based upon a failure to file an amended or new petition… after July 21, 2015.” USCIS will continue to enforce such actions that have been already initiated.
- If an employee changed location on or after April 10, 2015 or will change location on or before August 18, 2015, then an amendment is required and must be received by USCIS no later than January 15, 2016.
- If an employee changes work location on or after August 19, 2015, an amendment
is required and must be filed before the employee can begin work at the new
location or in the new position.
Please feel free to contact USILaw with any questions or issues that you may have. You
may reach us via telephone at +1 (202) 618 4540 or via email at info@usilaw.com.
