On May 21, USCIS released Guidance on when an employer should file an amended H-1B petition after a landmark Administrative Appeals Office (AAO) decision, Matter of Simeio Solutions, LLC. It held that employers must file amended H-1B petitions when a new Labor Condition Application (LCA) is required based on a change in the worker’s worksite.
Specifically, a new LCA, which is a form filed to inform the Department of Labor of conditions of employment, must be filed when a worker moves from one geographic region, known as a Metropolitan Statistical Area (MSA), to another.
This decision is at odds with previous guidance issued back in on October 23, 2003, in the form of an advisory letter written by then USCIS Director Efren Hernandez. This letter specifically advised that a mere change in an H-1B worker’s geographic location, in and of itself, does not require an employer to file an amended petition.
Recently, USCIS has been conducting work site checks on H-1B workers, and in situations where the worker is not found at the worksite listed in the originally filed H-1B petition and LCA, USCIS has been issuing notices of intent to revoke the H-1B status of these workers, and ultimately revoking petitions where the worksite changed without an amended petition.
The American Immigration Lawyers Association (AILA) has stated that it believes that based on law, liaison meeting minutes, and prior correspondence that no new petition is or should be required. It certainly would be costly to many consulting companies, and perhaps many will ignore the warning of “adverse action” as it is yet to be seen how USCIS will enforce the Simeio decision.
Readers who are interested in learning more about the implications of the Simeo decision or who would like discuss their immigration matters with an experienced attorney may visit our website at www.usavisalaw.com where they may find our contact information.
The writer is Attorney at Law
Hasan Abdullah
