SUBJECT: USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC

Transcription

1 U.S. Citizenship and Immigratin Services Office f the Directr (MS 2000) Washingtn, DC July 21, 2015 PM Plicy Memrandum SUBJECT: USCIS Final Guidance n When t File an Amended r New H-1B Petitin After Matter f Simei Slutins, LLC Purpse This Plicy Memrandum (PM) prvides guidance regarding the implementatin f Matter f Simei Slutins, LLC, 26 I&N Dec. 542 (AAO 2015). Scpe This memrandum applies t and shall be used t guide determinatins by all U.S. Citizenship and Immigratin Services (USCIS) emplyees. The updated guidance that fllws is effective immediately. Authrities Sectins 101(a)(15)(H)(i)(b) and 214(a)(1), (c)(1) f the Immigratin and Natinality Act (INA), Title 8, United States Cde, sectins 1101(a)(15)(H)(i)(b) and 1184(a)(1), (c)(1). Title 8 Cde f Federal Regulatins (CFR), sectin 214.2(h). Matter f Simei Slutins, LLC 26 I&N Dec. 542 (AAO 2015). Plicy On April 9, 2015, USCIS Administrative Appeals Office (AAO) issued the precedent decisin, Matter f Simei Slutins, LLC (Simei), which held that an H-1B emplyer must file an amended r new H-1B petitin when a new Labr Cnditin Applicatin fr Nnimmigrant Wrkers (LCA) is required due t a change in the H-1B wrker s place f emplyment. Specifically, the decisin stated: 1. A change in the place f emplyment f a beneficiary t a gegraphical area requiring a crrespnding LCA be certified t the Department f Hmeland Security (DHS) with

2 Page 2 f 7 respect t that beneficiary may affect eligibility fr H-1B status; it is therefre a material change fr purpses f 8 C.F.R (h)(2)(i)(E) and (11)(i)(A) (2014). 2. When there is a material change in the terms and cnditins f emplyment, the petitiner must file an amended r new H-1B petitin with the crrespnding LCA. This precedent decisin represents the USCIS psitin that H-1B petitiners are required t file an amended r new petitin befre placing an H-1B emplyee at a new place f emplyment nt cvered by an existing, apprved H-1B petitin. When a petitiner must file an amended r new petitin based n Simei Except as prvided belw in the Simei cmpliance sectin, a petitiner must file an amended r new H-1B petitin if the H-1B emplyee is changing his r her place f emplyment t a gegraphical area requiring a crrespnding LCA t be certified t USCIS, even if a new LCA is already certified by the U.S. Department f Labr and psted at the new wrk lcatin. Nte: Once a petitiner prperly files the amended r new H-1B petitin, the H-1B emplyee can immediately begin t wrk at the new place f emplyment, prvided the requirements f sectin 214(n) f the INA are therwise satisfied. The petitiner des nt have t wait fr a final decisin n the amended r new petitin fr the H-1B emplyee t start wrk at the new place f emplyment. When a petitiner des NOT need t file an amended petitin A mve within an area f intended emplyment : If a petitiner s H-1B emplyee is simply mving t a new jb lcatin within the same area f intended emplyment, a new LCA is nt generally required. See INA sectin 212(n)(4); 20 CFR Therefre, prvided there are n changes in the terms and cnditins f emplyment that may affect eligibility fr H-1B classificatin, the petitiner des nt need t file an amended r new H-1B petitin. Hwever, the petitiner must still pst the riginal LCA in the new wrk lcatin within the same area f intended emplyment. Fr example, an H-1B emplyee presently authrized t wrk at a lcatin within the New Yrk City metrplitan statistical area (NYC) may nt trigger the need fr a new LCA if merely transferred t a new wrksite in NYC, but the petitiner wuld still need t pst the previusly btained LCA at the new wrk lcatin. See 20 CFR This is required regardless f whether an entire ffice mved frm ne lcatin t anther within NYC, r just the ne H-1B emplyee. Shrt-term placements: Under certain circumstances, a petitiner may place an H-1B emplyee at a new wrksite fr up t 30 days, and in sme cases 60 days (where the emplyee is still based at the "hme" wrksite), withut btaining a new LCA. See 20 CFR In these situatins, the petitiner des nt need t file an amended r new H-1B

3 Page 3 f 7 petitin prvided there are n material changes in the terms and cnditins f the H-1B wrker s emplyment. Nn-wrksite lcatins: If H-1B emplyees are nly ging t a nn-wrksite lcatin and there are n material changes in the authrized emplyment, the petitiner des nt need t file an amended r new H-1B petitin. A lcatin is cnsidered t be a nn-wrksite if: The H-1B emplyees are ging t a lcatin t participate in emplyee develpmental activity, such as management cnferences and staff seminars; The H-1B emplyees spend little time at any ne lcatin; r The jb is peripatetic in nature, such as situatins where their jb is primarily at ne lcatin but they ccasinally travel fr shrt perids t ther lcatins n a casual, shrt-term basis, which can be recurring but nt excessive (i.e., nt exceeding 5 cnsecutive wrkdays fr any ne visit by a peripatetic wrker, r 10 cnsecutive wrkdays fr any ne visit by a wrker wh spends mst wrk time at ne lcatin and travels ccasinally t ther lcatins). See 20 CFR Cmpliance with Simei As explained in Simei, this USCIS interpretatin f the law clarifies, but des nt depart frm, existing regulatins and previus agency plicy prnuncements n when an amended H-1B petitin must be filed. T accmmdate petitiners wh need t cme int cmpliance with Simei, USCIS will exercise its discretin as fllws: Pre-Simei changes in the place f emplyment requiring certificatin f a new LCA: If a petitiner s H-1B emplyee mved t a new area f emplyment (nt cvered by an existing, apprved H-1B petitin) n r befre the date f publicatin f Matter f Simei Slutins, LLC (April 9, 2015), USCIS will generally nt pursue new adverse actins (e.g., denials r revcatins) slely based upn a failure t file an amended r new petitin regarding that mve after July 21, USCIS will, hwever, preserve adverse actins already cmmenced r cmpleted prir t July 21, 2015 and will pursue new adverse actins if ther vilatins are determined t have ccurred. Safe harbr perid: If a petitiner wishes, ntwithstanding the abve statement f discretin, t file an amended r new petitin t request a change in the place f emplyment that ccurred n r befre the Simei decisin, the petitiner may file an amended r new petitin by January 15, USCIS will cnsider filings during this safe harbr perid t be timely fr purpses f the regulatin and meeting the definitin f nnimmigrant alien at INA sectin 214(n)(2). Nte: See the additinal guidance in the table belw fr situatins where a petitiner must file an amended r new petitin. Pst-Simei changes in the place f emplyment requiring certificatin f a new LCA:

4 Page 4 f 7 If by January 15, 2016 (deadline fr filing) a petitiner des nt file an amended r new petitin fr an H-1B emplyee wh mved t a new place f emplyment (nt cvered by an existing, apprved H-1B petitin) after the date f publicatin f Matter f Simei Slutins, LLC (April 9, 2015) but befre August 19, 2015, the petitiner will be ut f cmpliance with DHS regulatins and the USCIS interpretatin f the law, and thus subject t adverse actin. Similarly, the petitiner s H-1B emplyee will nt be maintaining nnimmigrant status and will als be subject t adverse actin. If the change in the place f emplyment (nt cvered by an existing, apprved H-1B petitin) ccurs n r after August 19, 2015, then the petitiner must file an amended r new petitin befre the emplyee begins wrking at the new lcatin. If a petitiner s H-1B emplyee mved t a new place f emplyment (nt cvered by an existing, apprved H-1B petitin) On r befre April 9, 2015 Then The petitiner may chse t file an amended r new petitin by January 15, Such requests t change an H-1B emplyee s place f emplyment will be deemed timely. Even if the petitiner des nt file the amended r new petitin by this date, USCIS will generally nt pursue new revcatins r denials based upn failure t file an amended r new petitin. Hwever, ntices f intent t revke, revcatins, requests fr evidence, ntices f intent t deny, r denials issued prir t July 21, 2015 (date f this final guidance) remain in effect and the petitiner must cmply with them. If the petitiner has received a ntice f intent t revke a petitin and the respnse perid has nt ended, filing an amended r new petitin nw and prviding evidence f that filing prir t the respnse deadline may avert a revcatin. This is nly if there are n ther grunds fr the revcatin except the failure t file an amended r new petitin fr a change t a place f emplyment nt cvered

5 Page 5 f 7 by an existing, apprved H-1B petitin. If the petitiner has received a request fr evidence r a ntice f intent t deny a petitin based n a failure t file an amended petitin, USCIS may cnsider the current, pending petitin under review t satisfy the safe harbr filing requirement if it included, at the time f filing, a cpy f the certified LCA cvering the beneficiary s current wrk lcatin. In these cases, please ensure petitiners prvide a cpy f this guidance with their respnse, an explanatin that their current petitins satisfy the safe harbr filing requirement fr an amended r new petitin, and any ther evidence requested befre the expiratin f the respnse deadline. Nte: A petitiner may nt amend a pending petitin in respnse t a request fr evidence r a ntice f intent t deny. In the event there are material changes after the filing f a petitin, the petitiner must immediately file an amended r new petitin t reflect thse changes. After April 9, 2015 but prir t August 19, 2015 The petitiner must file an amended r new petitin by January 15, USCIS will cnsider filings prir t the deadline fr this safe harbr perid t be timely fr purpses f the regulatin. Hwever, if the petitiner des nt file the amended r new petitin within the time permitted, the petitiner will be ut f cmpliance with DHS regulatins. The petitiner s current Frm I-129, Petitin fr a Nnimmigrant Wrker, H-1B petitin apprval will be subject t a ntice f intent t revke and the emplyee may be fund t nt be maintaining his r her H-1B status. If the petitiner has received a ntice f intent t revke a petitin and the respnse perid

6 Page 6 f 7 has nt ended, filing an amended r new petitin nw and prviding evidence f that filing prir t the respnse deadline may avert a revcatin. This is nly if there are n ther grunds fr the revcatin except the failure t file an amended r new petitin fr a change t a place f emplyment nt cvered by an existing, apprved H-1B petitin. If the petitiner has received a request fr evidence r a ntice f intent t deny a petitin based n a failure t file an amended petitin, USCIS may cnsider the current, pending petitin under review t satisfy the safe harbr filing requirement if it included, at the time f filing, a cpy f the certified LCA cvering the beneficiary s current wrk lcatin. In these cases, please ensure petitiners prvide a cpy f this guidance with their respnse, an explanatin that their current petitins satisfy the safe harbr filing requirement fr an amended r new petitin, and any ther evidence requested befre the expiratin f the respnse deadline. As nted abve, a petitiner may nt amend a pending petitin in respnse t a request fr evidence r a ntice f intent t deny. In the event there are material changes after the filing f a petitin, the petitiner must immediately file an amended r new petitin t reflect thse changes. On r after August 19, 2015 The petitiner must file an amended r new petitin befre an H-1B emplyee starts wrking at a new place f emplyment nt cvered by an existing, apprved H-1B petitin.

7 Page 7 f 7 Additinal infrmatin regarding amended petitins If a petitiner s amended r new H-1B petitin is denied, but the riginal petitin is still valid, the H-1B emplyee may return t the place f emplyment cvered by the riginal petitin as lng as the H-1B emplyee is able t maintain valid nnimmigrant status at the riginal place f emplyment. If an amended r new H-1B petitin is still pending, the petitiner may file anther amended r new petitin t allw the H-1B emplyee t change wrksite lcatins immediately upn the latest filing. Hwever, every amended r new H-1B petitin must separately meet the requirements fr H-1B classificatin and any requests fr extensin f stay. In the event that the H-1B nnimmigrant beneficiary s status has expired while successive amended r new H-1B petitins are pending, the denial f any petitin r request t amend r extend status will result in the denial f all successive requests t amend r extend status. See Memrandum frm Michael Aytes, Acting Directr f Dmestic Operatins (December 27, 2005), fr similar instructins abut prtability petitins. If a petitiner s emplyee needs t travel while an amended r new H-1B petitin is still pending, please read ur past guidance n admissin prcedures fr nnimmigrants claiming prtability. See Memrandum frm Michael D. Crnin, Executive Assciate Cmmissiner (June 19, 2001). Use This memrandum is intended slely fr the training and guidance f USCIS persnnel in perfrming their duties relative t the adjudicatin f applicatins and petitins. It is nt intended t, des nt, and may nt be relied upn t create any right r benefit, substantive r prcedural, enfrceable at law r by any individual r ther party in remval prceedings, in litigatin with the United States, r in any ther frm r manner. Cntact Infrmatin Questins r suggestins regarding this PM shuld be addressed thrugh apprpriate channels t the USCIS Office f Plicy and Strategy.