AILA submitted a 15 page comment to the USCIS in response to the USCIS’ request for comments about the Simeio Solutions decision. MU Law published our submitted comments last week.
The Simeio Solutions decision now requires all H-1B employers to file an amended H-1B petition each and every time that an H-1B employee moves to a new location requiring an LCA. AILA called into question the AAO’s throw-away line that the Simeio Solutions decision “may be construed as contrary” to prior USCIS interpretation on the issue. AILA cited many instances of USCIS historical guidance over 20+ years, finding just one time that a USCIS official had implied that an amended H-1B was required.
Of equal importance, AILA points out that the USCIS ought not to issue quasi- legislative changes in policy and rules via AAO opinion. This approach circumvents the Administrate Procedures Act. It does not give the public a chance to comment on sweeping measures that impact all users of the program. Finally, AILA points out this new rule raises substantial unresolved questions, which is the very reason for offering the public a chance to comment via the proper rule-making process.