Month: July 2015

by SCwpadmin SCwpadmin 9 Comments

Modification to H-1B Amnesty

In the latest policy statement from USCIS, issued on July 21st, USCIS has modified their earlier statement on H-1B amnesty. Specifically, USCIS now states that if a person changed location before April 9, 2015 they are not required to file an amended H-1B Petition, and USCIS will generally not pursue a revocation or denial. If the person moved between April 9, 2015 and August 19, 2015 they have until January 15, 2016 to file an amended petition. After August 19, 2015, an amended petition must be filed before the H-1B employee changes location.

The most significant point is that, in most cases, USCIS will not impose consequences on H-1B beneficiaries who changed location before April 9, 2015. Because this statement does not guarantee the absence of consequences, we believe the more conservative approach is to file an amended H-1B petition notwithstanding this new directive. Individuals who changed location after April 9th and before August 19th have until January 15, 2016 to file amended petitions. Please note that an amended petition must now be filed before an H-1B changes locations.

 

 

by SCwpadmin SCwpadmin 16 Comments

USCIS to Implement New Rule for Changes in H-1B Location

On April 9, 2015, the Administrative Appeal Office of USCIS issued a new precedent decision in a case entitled “Matter of Simeo Solutions LLC.” This case held that employers must file an amended H-1B petition when an H-1B beneficiary changes locations. In the past, if an employer filed a new LCA for the new location, it could potentially avoid filing an amended H-1B petition. This case eliminates that possibility and requires an amended H-1B petition when the H-1B changes the location of his or her worksite. USCIS has created an amnesty period for correcting this problem, (see below).

This new rule does not apply, however, if the change in location occurs within the same metropolitan statistical area (MSA) or within normal commuting distance. Therefore, for example, if an H-1B beneficiary moves from one location in Denver to another location in the same city, an amended H-1B petition would not be necessary. Similarly, if an H-1B beneficiary’s worksite changes from Denver to Boulder, an amended H-1B petition would not be necessary since this is considered normal commuting distance. However, in both cases the employer must repost the position at the new location.

USCIS has created an Amnesty for those H-1B beneficiaries who have changed work locations and who have not filed an amended H-1B. Companies have been given until August 19, 2015 to file an amended petition to avoid any consequences caused by a change in location without an accompanying amended petition. If an amended petition is not filed by August 19th, the H-1B beneficiary could be deemed to be out of status which would have a detrimental impact on ongoing immigration status. Also we anticipate that USCIS will be targeting this issue in conducting random or targeted site visits.

We are providing this notice to our clients and suggest that they conduct an audit to make sure that their H-1B employees are still working in the same location as listed on the original LCA, or are working in the same MSA, or within normal commuting distance of the original LCA location. If there has been a change of location, we can prepare an amended H-1B petition.

Since time is of the essence, we suggest that this audit be undertaken as quickly as possible. Please let us know if you have any questions.

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