Guidance On H-1B Work Moves Leaves Penalties In Play - Law360

"Guidance on H-1B work site changes issued by U.S. Citizenship and Immigration Services on Tuesday eased a harsh filing deadline but did not shut the door on future punishments for employers who don’t amend petitions based on old moves, forcing attorneys to weigh possible client costs against the risk of agency action.

Over three months after the Administrative Appeals Office issued its decision in Matter of Simeio Solutions LLC, USCIS issued final guidance on the ruling, giving employers a significant extension on filing amended H-1B petitions and stating that the Simeio decision didn’t apply retroactively.

Under the April 9 ruling, employers must file an amended H-1B petition, along with an updated Labor Condition Application, or LCA, if an H-1B worker is moved to a significantly different location from the one listed on initial visa application documents.

Although USCIS initially said that Simeio would apply retroactively to H-1B workers who switched work locations before the decision came down, the agency changed its tune with Tuesday’s final guidance, saying it would “generally” not take adverse actions against employers that fail to file amended petitions based on employee moves that happened before April 9.

On top of this equivocating language, the guidance gave employers a “safe harbor period” in which they could choose to file an amended petition for an H-1B employee who moved work locations before Simeio, setting a new deadline of Jan. 15, 2016.

While attorneys applauded the new January deadline — which extends a previously announced Aug. 19 filing cutoff — some voiced concern at taking USCIS’ offer to not submit amended petitions for old work site changes, given the noncommittal tone of the guidance.

“It's kind of sending a mixed signal to employers,” Cyrus Mehta of Cyrus D. Mehta & Associates PLLC said of Tuesday’s guidance. “And we, as attorneys, will be advising our clients that out of an abundance of caution, you should still be filing amendments even if the USCIS said that they won’t be taking adverse action.”

Ian Macdonald of Greenberg Traurig LLP said he was recommending that employers with a large number of H-1B workers affected by the Simeio decision make a cost-benefit analysis of how much it will cost to file amended petitions, against the risk of future adverse action from USCIS.

He added, however, that if a company’s H-1B records are generally in great shape, it may not be necessary to have them submit updated petitions with USCIS.

“I think that if you've got a company that has very strong LCA records, and their H-1B filings are accurate and don't contain any deficiencies, then I feel comfortable moving forward without filing amended H-1B petitions to be compliant with the Simeio decision,” Macdonald said.

Attorneys were also critical of how USCIS implemented the high-profile ruling, which caused an uproar in the business immigration community after it was handed down in April. The agency increased attorney concerns in May, when its draft guidance set a tentative Aug. 19 deadline on updated petitions for pre-Simeio work site moves.

“It felt that USCIS was in a process of catch-up all the way from April 9 when the decision came out, up until this most recent policy guidance was released,” said Macdonald, who wondered if there needed to be more communication between the AAO and USCIS policy makers about upcoming decisions.

Jason Burritt of Seyfarth Shaw LLP said that it might be helpful for USCIS to hold calls with stakeholders before issuing draft guidance on a big issue, in order to hear how the change might impact particular industries or companies.

“To the extent that they could be more proactive as opposed to reactive, that would certainly help all of us to ensure compliance,” Burritt said. “A lot of times, things are rolled out, there's an outcry, there's a stakeholder call, and then a couple weeks later, the way things happen changes.”

Some attorneys also questioned whether the final USCIS guidance should have been put through notice and comment rule-making under the Administrative Procedure Act, given its sizable impact on policy governing H-1B workers.

“As a general matter, I continue to believe that this is significant change in policy that should have been [put] forth through a notice and comment period, rather than through an agency decision and a policy memorandum,” said Marketa Lindt of Sidley Austin LLP.

Lindt argued that the problems that seemed to plague the implementation of the Simeio ruling, such as “arbitrary timelines and changes in direction,” can be avoided when policy changes are issued through the notice and comment process, and the resulting regulation applies going forward.

Mehta echoed the sentiment that rule-making may have been more appropriate, although he noted that this is a “grey zone” because USCIS was simply laying out how it will enforce the AAO’s decision.

“The question is whether this can withstand attack because they didn't issue a rule,” Mehta said. “And maybe they might, because they probably didn't need to issue a rule, because this is just a clarification of the Simeio decision."

Litigation may also be on the horizon if USCIS does go after certain employers that fail to file amended H-1B petitions for older work site changes, he said.

“I think people will file lawsuits more if they enforce against employers who changed employees' locations before the decision,” Mehta said. “In that context, they may have a basis to file a lawsuit.”

A USCIS representative told Law360 that the agency would continue to engage with the public before issuing final guidance, and said that with its new guidance, the agency said it was hoping to provide employers with a grace period.

“The Simeio decision is a clarification of the law as it has existed for many years,” USCIS said in an emailed statement. “One aim of this final guidance is to provide a safe harbor period for those not in compliance with the law and permit them to file an amended or new petition."

As to why the agency chose not to shut the door on possible punishments for employers who don't file amended petitions for H-1B worker moves that happened before April 9, the agency said it was necessary to keep its options open.

"The decision to pursue (or to not pursue) adverse action is a matter of discretion, and USCIS believes it is necessary to preserve the ability to do so if it is determined to be appropriate in a specific case," the agency said in a statement." - Allissa Wickham, Law360, July 22, 2015.