Will USCIS Make Simeio Prospective Only? - Law360

Allissa Wickham, Law360, June 11, 2015 - "The head of U.S. Citizenship and Immigration Services reportedly said this week that the agency may apply a recent Administrative Appeals Office decision on H-1B work site changes prospectively, which could spell relief for employers facing a tough August filing deadline on updated petitions for workers transferred before the ruling.

Speaking at the Council for Global Immigration on Tuesday, USCIS Director Leon Rodriguezsaid the agency is thinking of somehow stipulating that Matter of Simeio Solutions LLC will only apply prospectively, according to the Society for Human Resource Management and attorneys who were in attendance. A representative for USCIS declined to comment.

Cyrus Mehta of Cyrus D. Mehta & Associates PLLC said this move could spell "huge relief" for H-1B employers, some of whom are facing an Aug. 19 deadline on filing amended petitions for H-1B employees who have switched locations.

Broadly speaking, under the AAO's April Simeio decision, employers must file an amended H-1B petition and an updated Labor Condition Application if an H-1B worker moves to a significantly different location from the one listed on the initial visa application documents.

After the AAO handed down its decision, USCIS followed up with guidance, saying an amended H-1B petition isn't necessary if a worker's new site is in the same metropolitan statistical area.

However, USCIS said the decision would apply retroactively, and that employers whose H-1B workers were moved before Simeio came out had until Aug. 19 to file an updated petition. This could require some employers to go through hundreds of consultants on H-1Bs to figure out who needs retroactive amendments, Jason Burritt of Seyfarth Shaw LLP told Law360 in May.

Michael Turansick of Fragomen Del Rey Bernsen & Loewy LLP, who was at Rodriguez's talk, said he understood from the director's comments that both Simeio's retroactivity and the August deadline were "under review."

"I believe they're still working on building a consensus within the agency," Turansick said. "I'd be surprised if we didn't see some extension of the deadline as it is in the agency's interests from a workload/backload perspective."

Angelo Paparelli of Seyfarth Shaw, who was also at the talk, added that Rodriguez knows the Simeio decision could cause trouble for companies, and that the director referenced conversations he had on this topic with Randy Johnson of the U.S. Chamber of Commerceand Lynn Shotwell, the executive director of the Council for Global Immigration.

"He basically said that he'd had conversations with them, and they helped him understand the burden on employers," Paparelli said.

Helping out employers at the last minute after fielding complaints from attorney or employer groups is typical for USCIS, according to Marketa Lindt of Sidley Austin LLP.

In this case, it could be to the detriment of organized employers who started filing amendments once the AAO decision came out, she said.

"This guidance, if it's issued, obviously comes some time after the AAO decision announced what the government's position on this issue is, but that's something that we've seen time and time again — that USCIS penalizes proactive, organized employers and seems to reward procrastinating employers," Lindt said.

USCIS may have also realized that by requiring Simeio to apply retroactively, it may have been bumping up against some recent court rulings, such as the Seventh Circuit's holding in Velasquez-Garcia v. Holder last year, Mehta said. In that decision, the appeals court held that retroactively applying a new filing rule created by the Board of Immigration Appeals had resulted in a "manifest injustice" in the petitioner's case.

"I think the agency has realized that it may be kind of acting against court decisions, and that could give rise to a lawsuit," Mehta said.

However, if the agency does issue new guidance on retroactivity, it will be key that the AAO and the USCIS director are in agreement, said Lynden Melmed of Berry Appleman & Leiden LLP.

The AAO, after all, specifically noted that its interpretation of the regulations hadn't strayed from past USCIS policy — even though attorneys argue that a 2003 letter from Efren Hernandez, the agency's former business and trade branch director, said a new Labor Condition Application doesn't necessarily require an amended H-1B filing.

"The worst-case scenario is for there to be ambiguity about whether an amendment is required for location changes that occurred in the past," Melmed said. "This is a situation where the director and the AAO really need to be on the same page."

Several attorneys, however, were unfazed by the possibility of tension between USCIS and the AAO. Although Paparelli noted that the office once tried to repudiate an obligation to rely on 1994's so-called Puleo memo, which provided policy guidance on Immigration Act of 1990 amendments and implementing regulations, the AAO is really an "arm of USCIS."

Lindt also noted that discrepancies between the AAO and USCIS would also likely be limited, since the office only really reviews decisions from the agency.

For instance, whether an employee is properly covered by an H-1B petition would likely come up through a probe by Fraud Detection and National Security Directorate, which is a USCIS unit that would presumably defer to agency guidance, Lindt said.

"AAO and the USCIS work in tandem, consistent with USCIS policy," Mehta added. "So, if the USCIS now issues a policy memo, I don't believe that there would be tension." "