USCIS Issues Anticipated Final Guidance on Employer Responsibilities When they Transfer H-1B Employees to Different Worksite Locations

On July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) issued its final guidance on when employers are required to file new or amended petitions in connection with an H-1B employee's relocation to a different employer worksite. This anticipated guidance, which is effective immediately, comes on the heels of the precedent decision – Matter of Simeio Solutions, LLC – issued by the USCIS Administrative Appeals Office on April 9, 2015.

As background, the general rule regarding when to file new or amended H-1B petitions is that it is only required when there is a material change in the terms and conditions of the H-1B employment. However, up until the Simeio decision, USCIS hadn't clarified the meaning of the term "material change".

In fact, for the past several years, immigration lawyers have felt confident in advising employers that new or amended H-1B petitions were not necessary solely on account of an employer worksite location change. Rather, the most common advice, which was based on a past declaration made by a legacy Immigration and Naturalization Service officer, was to simply have an employer file a new Labor Condition Application with the U.S. Department of Labor to record the new worksite and ensure that the employer was in compliance with prevailing wage requirements.

The Simeio decision has now resulted in a dramatic change.

In Simeio, the USCIS Administrative Appeals Office held that an H-1B employee's relocation to a different geographical worksite is a material change in the terms and conditions of employment. As such, the decision went on to state that, with certain limited exceptions, an employer must file a new or amended petition in the event of a change in an employee's geographical worksite. Simply filing a new Labor Condition Application with the U.S. Department of Labor is no longer an appropriate solution and, in fact, may even result in dire consequences, including a revocation of H-1B work authorization based on a finding that the employee failed to maintain status.

The new USCIS guidance, which is intended to further clarify the meaning of the Simeio decision, makes clear that an employer can transfer an H-1B employee to a new worksite location upon the filing of a new or amended H-1B petition. There is no need for the employer to wait for USCIS to issue a final decision on the petition. For this purpose, "filing" generally means that USCIS has received the petition.

Undoubtedly, this guidance provides a clearer path for employers to follow on a moving forward basis. Once employers are made aware of this new requirement, they will know to consult competent immigration counsel any time an H-1B employee is scheduled to conduct any work for the employer at any sites other than those listed in the original H-1B petition. Counsel will be able to advise on whether any of the limited exceptions apply or whether a new or amended H-1B petition is required.

Immigration attorneys may also now choose to alter the way in which they prepare H-1B petitions for employers who maintain active worksites in several different geographic areas. Under this new guidance, it may make sense in certain cases to list all worksite locations on the original H-1B petition so as to avoid having to refile or amend in the event that the employer makes a future change in worksite location. Different strategies will apply to different situations.

But, what happens in the cases of H-1B employees who were relocated to different work sites prior to April 9, 2015 when the Simeio decision was issued? As is typical with USCIS, the new guidance provides convoluted information. At first, it appears as though employers are not required to file new or amended petitions under these circumstances. However, upon closer inspection, the guidance essentially states that USCIS reserves its right to exercise discretion to pursue adverse action in certain cases even if a relocation predated the Simeio decision.

Interestingly, the guidance goes on to explain that USCIS will recognize a "safe harbor period" for H-1B employers who would rather not gamble on whether the agency will exercise its discretion to pursue adverse action. In these cases, new or amended H-1B petitions that are filed as a result of a pre-Simeio worksite location change will be considered timely if they are filed by January 15, 2016.

While the guidance attempts to provide different deadlines for different scenarios, the safest and most practical advice is that H-1B employers with more than one worksite location need to immediately consult with immigration counsel and, when necessary, comply with Simeio for all future location changes. As far as past infractions that pre-date the Simeio decision, employers should also immediately consult with experienced immigration counsel to determine the best way to bring their H-1B programs into compliance. Otherwise, there is no telling how far USCIS can go in its pursuit of adverse action. For instance, we don't yet know whether non-compliance on the H-1B side will negatively impact an employment-based green card application. Worse yet, we have no idea whether the same issues could crop up during the processing of a naturalization application and have a negative impact on a former H-1B employee's ability to become a U.S. citizen. Past immigration law infractions have a tendency to follow people throughout their immigration histories. In order to avoid both the short and long-term problems that can result from non-compliance with Simeio, employers should take action now.