Here we explain the USCIS memo (PM-602-0120) regarding “Matter of Simeio Solutions, LLC” where USCIS set out the rule that H1b amendment is required when there are certain material changes including change of work location.
In a nutshell: This memo provides guidance on when an H-1B employer needs to file an amended or new H-1B petition because the employee’s work location has changed. It’s all about ensuring that the Labor Condition Application (LCA) accurately reflects where the H-1B worker is actually working.
Key Concepts & the Simeio Decision:
- Matter of Simeio Solutions, LLC: This was a USCIS Administrative Appeals Office (AAO) decision (April 9, 2015) that established a critical precedent: If an H-1B worker’s place of employment changes to a geographical area that requires a new LCA, the employer MUST file an amended or new H-1B petition.
- Why is this important? The LCA is the foundation of the H-1B visa. It certifies that the employer will pay the prevailing wage, provide safe working conditions, etc., at the specific location where the employee will work. If the location changes and the old LCA doesn’t cover it, the H-1B status is potentially compromised.
When Do You Need to File an Amended or New Petition?
- General Rule: If the H-1B employee’s work location changes to a geographical area that requires a new LCA, you MUST file an amended or new H-1B petition before the employee starts working at the new location.
When Do You NOT Need to File an Amended or New Petition?
- Move Within the “Area of Intended Employment”: If the new work location is within the same “area of intended employment” as defined by the Department of Labor (DOL), a new LCA is not generally required. Therefore, no amended H-1B petition is needed unless there are other material changes to the terms and conditions of employment. However, the employer must post the original LCA at the new work location.
- Short-Term Placements: The DOL allows for short-term placements (up to 30 days, sometimes 60 days if the employee is still based at their “home” worksite) at a new location without a new LCA. In these cases, no amended H-1B petition is needed, provided there are no other material changes to the employment.
- Non-Worksite Locations: If the employee is only going to a “non-worksite” location, no amended petition is needed. A “non-worksite” is defined as:
- Employee developmental activities (conferences, seminars).
- Locations where the employee spends little time.
- “Peripatetic” jobs where travel is occasional and short-term (generally not exceeding 5 consecutive workdays, or 10 consecutive workdays if the employee spends most of their time at one location).
Other Important Points:
- Starting Work After Filing: Once the amended petition is properly filed, the H-1B employee can start working at the new location immediately, provided the requirements of INA section 214(n) are met. You don’t have to wait for approval.
- Denials: If the amended petition is denied, but the original petition is still valid, the employee can return to the original work location (as long as they maintain valid status).
- Pending Petitions: If the employee needs to travel while an amended petition is pending, consult past USCIS guidance on admission procedures for H-1B workers claiming portability.
In simpler terms:
Imagine an H-1B worker is approved to work at Company X’s office in New York City.
- Moving to a different office within NYC: Probably doesn’t need an amended petition (but the LCA still needs to be posted).
- Temporary assignment in Boston for a week: Probably doesn’t need an amended petition (it’s short-term).
- Permanent transfer to Company X’s office in Los Angeles: Definitely needs an amended petition before the employee starts working in LA.
The Simeio memo is all about making sure the H-1B worker is authorized to work at the correct location and that the employer is complying with the LCA requirements. It’s critical for employers to understand these rules to avoid putting their H-1B employees’ status at risk.
About the Author
Discover more from Immigration Analytics
Subscribe to get the latest posts sent to your email.
