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Immigration Law

Cyrus D. Mehta - To Amend or Not to Amend: USCIS Issues Final Simeio Guidance

"U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, instructing when an employer should  file an amended or new H-1B petition following Matter of Simeio Solutions, LLC (Simeio).  In Simeio, a precedent decision issued on April 9, 2015, the Administrative Appeals Office concluded that changes in the H-1B beneficiary’s places of employment, resulting in the obtaining of a new Labor Condition Application (LCA), constituted a material change to the terms and conditions of employment as specified in the original petition, thus necessitating the filing of an amended petition.
What is significant about the final guidance is that it extended the deadline to file an amended H-1B petition to January 15, 2016 from the previously suggested deadline of August 15, 2015.  It also sends a mixed signal about whether USCIS will take punitive action regarding moves prior to Simeio that were not followed by the filing of an amended H-1B petition.
... Although in its prior draft guidance, USCIS said that Simeio would apply retroactively, the final guidance is more equivocal and sends a mixed signal.  On the one hand, the final guidance states that the USCIS would “generally” not take adverse actions against employers that fail to file amended petitions based on moves that may have triggered a new LCA prior to April 9, 2015.  On the other hand, the USCIS gives employers a “safe harbor period” in which they may choose to file amended H-1B petitions by January 16, 2015.  With respect to moves that have taken place after April 9, 2015 but prior to August 19, 2015, amended H-1B petitions must be filed by the new deadline of January 15, 2016.  Regarding any moves after August 19, 2015, the employer must file an amended or new H-1B petition before the H-1B employee starts working at the new place of employment not covered by an existing approved H-1B petition, and not subject to any of the above discussed exceptions to filing a new LCA." - Cyrus D. Mehta, July 27, 2015.