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U.S. Citizenship and Immigration Services has released guidance clarifying last month’s precedent decision by the Administrative Appeals Office finding that employers must file an amended H-1B petition when an H-1B employee changes worksite locations and a new Labor Condition Application is required.
Significantly, the guidance confirms that the ruling, Matter of Simeio Solutions, applies to worksite changes that occurred before the April 9 ruling. Therefore, employers whose H-1B employees changed locations before the ruling are required to file amended H-1B petitions. Employers who have not filed amended H-1B petitions for those employees must file no later than Aug. 19.
Additionally, employers who have not yet filed amended H-1B petitions for workplace location changes that occurred after the ruling but before May 21 will also have until April 19 to file an amended petition.
Failure to file by that date will result in both the employer and H-1B employee being out of compliance and subject to adverse action.
The guidance provides other clarifications:
The case is Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015).
BAL Analysis: Employers who relied in good faith on existing agency correspondence before the decision and did not file amended petitions for H-1B workers who changed locations before April 9 will not face adverse action, but are now on notice that they must file amended petitions for H-1B worksite changes no later than Aug. 19 to be in compliance.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
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