According to an article in today's Law360, the U.S. Citizenship and Immigration Services (USCIS) director has stated that the recent court decision regarding changes in a H-1B worker's worksite might not apply to past location changes, which would be a huge relief to many H-1B employers.
The article reports that USCIS Director Leon Rodriguez said the agency is thinking of stipulating that Matter of Simeio Solutions LLC will only apply prospectively, according to the Society for Human Resource Management and attorneys who were in attendance at the meeting. A representative for USCIS apparently declined to comment.
The Simeio decision from the Administrative Appeals Office (AAO) stated that employers must file an amended H-1B petition and an updated Labor Condition Application (LCA) if a H-1B worker moves to a different location from the location named in the original petition and LCA. Following the decision, USCIS issued guidance saying that
(a) There was no need for an amended petition if the new location was in the same Metropolitan Statistical Area (MSA).
(b) Employers must file a new H-1B decision by August 19, 2015, to cover new locations, including changes that occurred before Simeio. For some employers, including consulting companies that move employees frequently, this could mean hundreds of new petitions.
According to the Law360 article,
"USCIS may have...realized that by requiring Simeio to apply retroactively, it may have been bumping up against some recent court rulings, such as the Seventh Circuit's holding in Velasquez-Garcia v. Holder last year, [Cyrus] Mehta said. In that decision, the appeals court held that retroactively applying a new filing rule created by the Board of Immigration Appeals had resulted in a "manifest injustice" in the petitioner's case."
Before the Simeio decision, immigration lawyers relied on USCIS guidance that stated that a new petition was not needed if the employer had received a certified LCA for the new location before the move.
Stay tuned for more updates as USCIS figures out its position...
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.