The April 9, 2015 AAO decision In Matter of Simeio Solutions, LLC (PDF copy) put many H-1B employers (mainly those who place H-1B workers at third-party worksites) in a position to scramble and assess their current level of compliance with the H-1B regulations, as they would be interpreted by USCIS in accordance with the Simeio Solutions decision. Earlier, on May 27, 2015, USCIS issued a draft policy memorandum attempting to provide some widely-anticipated guidance on when an H-1B is required together with a deadline of August 19, 2015 for compliance. However, in a July 21, 2015 Policy Memorandum, USCIS has provided an amended (and what we believe would be the final) set of instructions as to how USCIS would treat H-1B petitions where the employee changes worksite locations.
Our Analysis of the In Matter of Simeio Solutions Decision
Very shortly after the AAO decision came out on April 9, 2015, our office provided a very thorough analysis of the AAO decision – including some historical background, pre-Simeio enforcement trends, together with detailed analysis of the decision. We invite our readers to read our analysis for more details and background. We also conducted a highly-attended webinar on the decision and a public archive is available.
Quick Overview of the May 27, 2015 Draft Policy Guidance
In an attempt to provide more clarity with respect to the best compliance approach and in reaction to the Simeio decision, on May 27, 2015, USCIS issued Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision which became effective as of the date of publication even while it was under public comment period. One of the main goals of the draft guidance was to (1) provide clarification on when an H-1B amendment is required and when it is not required and to (2) establish a 90-day grace period, until August 19, 2015, for H-1B employers to take the necessary steps to become compliance (file LCA and H-1B amendments).
We discussed and analyzed the May 27, 2015 Draft Guidance and you can read our analysis here.
The July 21, 2015 Final Policy Memorandum
In a Policy Memorandum, dated July 21, 2015, with subject “USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC”, USCIS seeks to provide ultimate and final set of instructions as to when an H-1B amendment must be filed and what are the compliance steps for employers, especially for H-1B cases where the change of employment occurred at various times before and after the Simeio decision on April 9, 2015.
The Policy Memorandum essentially confirmed the Simeio decision that an H-1B amendment is required when there is a change in the worksite location but also provides some explicit guidance as to when an H-1B amendment is not required. This section of the final Policy Memorandum tracks the May 27, 2015 draft version.
The Policy Memorandum also goes into detail as to how USCIS would treat compliance by H-1B employers and sets different period during which H-1B change of worksite location will be treated differently in terms of compliance. More on this in detail below.
First, When is an H-1B Amendment Required?
An H-1B employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location. In other words, doing an LCA only for the changed worksite location is not sufficient – an H-1B amendment filing prior to beginning work at the new worksite location is required.
Once the amended H-1B petition is filed, the H-1B employee is allowed to start working at the new worksite location. The employer can (but does not have to) wait for the H-1B amendment decision before the H-1B employer can start work at the new worksite location.
From practical standpoint, the requirement to have the H-1B amendment filed before the new worksite location placement begins means that the H-1B amendment process should be initiated at least 2-3 weeks (for LCA certification, preparation, signing and filing of the H-1B petition) before the anticipated starting date for the new worksite location placement. Often third-party client requirements require much faster starting date and this H-1B amendment preparation time should be considered carefully. Another practical consideration is that an H-1B amendment for a third-party worksite placement requires documentation of the third-party client – letters, contracts, and similar documents – which are often difficult or slow to get.
When is an H-1B Amendment NOT Required?
Helpfully, the Policy Memorandum has clarified when an H-1B amendment is not required.
The New Worksite Location is Within the Same MSA. If the new worksite location is within the same MSA or area of intended employment a new LCA is not required and, by extension, no H-1B amendment is required. It is important to note that the H-1B employer must still post the original LCA in the new worksite location within the same MSA or area of intended employment.
Short-term Placements. Under certain circumstances, an H-1B employer may place an H-1B worker at a new job location for up to 30 days and, in some cases for up to 60 days (where the employee is still based at the original location), without having to obtain a new LCA for the short-term placement location (20 CFR 655.735). In these situations, the H-1B employer does not need to file an amended H-1B petition (assuming there are no other material changes to the terms of the H-1B petition).
Non-worksite Locations. If the H-1B worker is only going to a non-worksite location and there are no other material changes to the H-1B petition, no H-1B amendment is required. According to USCIS, a “non-worksite location” is:
- when the H-1B worker is going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- the H-1B worker spends little time at any one location; or
- the job is “peripatetic in nature,” such as situations where their primary job is at one location but the H-1B worker occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” 20 CFR 655.715.
Final Simeio Compliance Guide – Grace Period and Safe Harbor for Compliance
The guidance described above as to when an H-1B amendment is required when changing worksite is clear enough. When it comes to how USCIS will handle Simeio compliance before and after the decision and the subsequent USCIS guidance, this is where it gets a little bit more complicated. Below is our attempt to distill and simplify the guidance in a more user-friendly way.
If the H-1B Worksite Change Happened On or Before the April 9, 2015 Simeio Decision. For H-1B petitions where the worksite change happened before April 9, 2015, USCIS has indicated that they will not pursue new adverse actions (e.g., a denial or a revocation). Adverse actions initiated or completed before July 21, 2015 (the date of the Memo) will remain valid. Essentially, USCIS will not reopen H-1B cases denied or revoked over the past three months due to non-compliance with Simeio and USCIS will not retract active attempts to deny or revoke an H-1B petition due to non-compliance with Simeio. But for those H-1Bs where the worksite change happened before April 9, 2015 and are otherwise in compliance, USCIS is saying that they will not take new adverse action.
If the H-1B Worksite Change Happened After April 9, 2015 and Before August 19, 2015. In this situation, USCIS provides a safe harbor compliance period until January 15, 2016 for employers to file an H-1B amendment and become compliant. H-1B amendments filed before the January 15, 2016 safe harbor period deadline will be considered timely. After the safe harbor period ends, any H-1B petitions where the worksite change happened after April 9, 2015 will be out of compliance and subject to adverse USCIS action (including for the H-1B worker to be considered to be in violation of H-1B status).
If, during the January 15, 2016 safe harbor period, an H-1B employer is facing a request for evidence or revocation proceeding on an existing H-1B petition where there was change in the worksite, filing a new H-1B amendment and providing USCIS with information about the newly-filed H-1B amendment petition should allow the petition to avoid revocation (assuming there are no other issues).
At the same time, if there is a change to the terms of a pending petition, including worksite change, USCIS will not entertain amendments to a pending petition. Instead, a new H-1B amendment will have to be filed.
If the H-1B Worksite Change Happened After August 19, 2015. This is when USCIS will expect all H-1B petitioners to file H-1B amendment or new petition before an H-1B worker starts working at the new worksite location. No grace periods or safe harbor applies.
For H-1B workers who are considering changing worksites, it may be slightly more beneficial to do so before August 19, 2015. The reason is that the worksite change before August 19, 2015 will be considered to be within the safe harbor and the H-1B employer will, based on this Policy Memo, have until January 15, 2016 to file the H-1B amendment (but it must be filed).
Post-Simeio Compliance Guide for H-1B Employers (and Workers)
Review Worksite Location and Change History. We urge H-1B employers to carefully analyze the work locations of their H-1B workers and to confirm when such worksite locations changes have occurred (especially from early 2015 until the present time) in order to determine the next course of compliance action. Employers should also keep in mind the January 15, 2016 safe harbor deadline. Current cases facing adverse USCIS action (notice of intent to deny or revoke, RFEs, etc.) may have a solution during the safe harbor period.
H-1B Amendment is Denied. If the H-1B amendment is denied but the underlying petition is still valid, the H-1B worker may be able to return to the worksite covered in the underlying H-1B petition and continue to be in valid H-1B status. For many H-1B workers it may not be possible to return to a client where the project and the contract have ended, but this may help some folks.
H-1B Amendment Pending and Worksite Location Changes Again. As noted above in this article, USCIS will not permit the terms (worksite location) of a pending H-1B petition to be revised while the petition is still pending. But USCIS will allow another H-1B amendment petition to be filed when an earlier H-1B amendment petition remains pending if there is another change in the H-1B worker’s job location. This is often referred to as “bridging” of applications. There are risks in some cases – for example, if the H-1B status (I-94 card) has expired, a denial of an H-1B petition may cause all successive requests for H-1B status to be denied even if the H-1B petition is approved. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (December 27, 2005).
Travel Abroad While H-1B Amendment is Pending. It may be possible to travel outside and reenter the US while an H-1B amendment is pending. The rules are set forth in the June 19, 2001 AC21 Memorandum by Michael Cronin. The Cronin memorandum sets up certain conditions which may allow entry into the US based on a pending H-1B petition under the provisions of AC21. While this kind of entry is possible, we caution that there are specific requirements and also validity of status limits so we urge H-1B workers to consider their situation and options carefully before assuming that they can enter the US.
We would like to iterate clearly that based on recent developments and on the final Policy Memorandum, the requirement is that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite. Also, employers should evaluate their H-1B workers’ case files to determine whether there are cases which need to be brought into compliance before August 19, 2015.
We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance. H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans. Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.No comments
The start of the new year is a perfect time to assess corporate compliance with U.S. immigration laws. As Immigration and Customs Enforcement (“ICE”) and the Department of Labor (“DOL”) increase the number of company audits and fines each year, it is important for employers to perform annual audits of their employment law and immigration compliance. In addition, companies are often financially responsible for any civil and/or criminal fines imposed when their staff does not correctly follow the letter of the law. Thus, staff training on immigration compliance and employment laws should be a standard part of any business’s regular compliance audit.
Basic I-9 Requirements
Form I-9 is required for all hires and section 2 of Form I-9 must be completed by the employer within 3 business days of the first date of employment, regardless of immigration status or citizenship of the new employee.
Form I-9 should be on file for every current employee. For former employees, Form I-9 documents should be retained for 1 year after termination or 3 years after start of employment, whichever is later.
These confidential forms should be kept secured with access limited to trained staff only. Forms I-9 and supporting documents may be retained electronically or in paper hard copies as long as the company correctly processes and consistently retains I-9s in the same format.
Accepted Versions of I-9
New I-9 forms should be filled out using the latest version of the form (as of the date of this article, March 8, 2013 edition only). A new version does not need to be completed for current employees with a previously completed Form I-9. The Spanish version I-9 may only be completed by employers and employees located in Puerto Rico.
E-Verify and I-9 Supporting Documents
If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every new employee. For non-U.S. citizens or non-permanent residents, evidence of current and valid employment authorization is required.
Common I-9 Errors
I-9 errors can be costly to employers if identified by the DOL or ICE during an audit. Some common I-9 errors include:
- Not timely completed;
- Employer discrimination by requesting too few, too many, or only specific documents;
- Incorrectly completed forms, such as incorrect date of birth or wrong box checked, missing social security number, no signature, document list incomplete or incorrect, incorrect form version, etc., as well as inconsistent manner of completion by the various company representatives, including an inconsistent mix of electronic documents and paper documents;
- Not properly tracking immigration employment authorization expirations and documenting timely renewals or extensions of employment authorization;
- Improper retention by not timely removing expired I-9s for former employees or not maintaining I-9s in a safe and secure manner; and
- Incorrectly completing or not consistently documenting e-Verify, including situations where no-match letters are received and timely resolved.
Many of these pitfalls can be avoided through regular employee training and annual I-9 audits.
We certainly recommend periodic internal I-9 reviews by employers. However, such reviews should be done carefully. It is not uncommon for self-audits of companies, once done incorrectly, to cause additional costly errors; therefore, an I-9 compliance audit by a qualified outside source is strongly recommended.
In addition to auditing actual completed I-9s and supporting documents, employers are responsible for ensuring their hiring managers, human resources, executive staff, and other responsible employees are trained in employment law requirements. Specifically, what can and cannot be asked or requested. For example: not all designated employees know how to avoid discrimination allegations when requesting documents by employees; not all designated employees know who is authorized to sign I-9s on behalf of the company, and not all designated employees know (or can easily find out) the difference between employees and contract workers.
I-9 Official Resources
We would like to share some general I-9 resources.
- USCIS’ I-9 Central Home
- USCIS’ Handbook for Employers, Instructions for Completing Form I-9
- USCIS’ E-Verify User Manual
How Can We Help
The Capitol Immigration Law Group can provide various levels of internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training. We can provide immigration compliance training and auditing to meet an employer’s specific needs. We encourage all employers to be mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance or you have any questions or comments.No comments