The USCIS has just released Guidance on its webpage further clarifying the Simeio Solutions case from April 2015.
The most impactful part of the Guidance is that the USCIS is now requiring all H-1B employers to file an H-1B amendment for employees who have moved their geographical location, even if that move happened before April 9, 2015, the date of the Simeio Solutions decision.
Simeio Solutions holds that a new H-1B petition is required whenever an H-1B worker changes his geographical location, if that geographical change requires a new Labor Condition Application (LCA). Typically geographical changes outside of a metropolitan statistical area require a new LCA.
The USCIS previously implied that only relocations happening after the issuance of the April 0, 2015 Simeio Solutions decision. This new interpretation reaches back in time, requiring all prior geographical moves to file amended H-1Bs.
Accordingly all MU Law clients are encouraged to fully review their H-1B roster and confirm that the H-1B employee’s current worksite matches the worksite listed on the employee’s I-129 petition. If the H-1B employee’s current worksite does not match the worksite listed on the employee’s I-129 petition, then we should prepare and file an amended H-1B petition.
Thankfully, the Guidance is giving all H-1B employers a 90 day grace period, until August 19, 2015, to comply with this latest Guidance interpretation.
The new USCIS Guidance also confirms existing safe harbors within the law. An amended H-1B does not have to be filed when:
-The geographical move is within the same metropolitan statistical area.
-Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA.
-The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive.