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USCIS issues final guidance on when to file an amended H-1B petition

U.S. Citizenship and Immigration Services (USCIS) has issued final guidance regarding when an amended H-1B petition must be filed, after USCIS’ Administrative Appeals Office (AAO) issued the precedent decision, Matter of Simeio Solutions, LLC.

Matter of Simeio Solutions, LLC concerns the H-1B visa classification, a nonimmigrant category which permits a U.S. employer to employ a foreign national worker temporarily in a specialty occupation in the United States. The precedent decision stated that a U.S. employer must file an amended petition when a change in an H-1B worker’s worksite location requires a new Labor Condition Application (LCA). USCIS guidance released in May, 2015, made that process retroactive, requiring a new LCA and an amended H-1B petition for each worker whose location changed prior to the decision. USCIS set August 19, 2015, as the amended petition deadline for compliance.

In its final guidance issued July 21, 2015, USCIS changed that position. USCIS now states that it will generally not pursue adverse actions, solely based on an employer’s failure to file an amended petition, against employers whose H-1B employees moved to a new area of employment on or before April 9, 2015 (the date that Matter of Simeio Solutions, LLC was decided). Thus, a new LCA application and an amended petition is only required for a location change occurring after April 9, 2015.

In addition, the deadline of August 19, 2015, was moved to January 15, 2016. USCIS will consider an amended H-1B petition filed by the amended deadline to be timely. The precedent decision and policy guidance demonstrate the importance and complexity of this issue. Employers employing foreign workers in H-1B status should work with an experienced immigration attorney to ensure compliance.

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