Tag Archives: Labor condition application

When You Need An Amended H-1B Petition, Simeio Solutions Decision

Contributed by Jacqueline Lentini

H-1B employee mobility makes USCIS uncomfortable.

In fact, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) set a new precedent via the Matter of Simeio Solutions LLC. The AAO determined that a worksite relocation outside of the intended area of employment on the original H-1B petition qualifies as a material change to the petition. H-1B employers are now required to file an amended petition for the employee before placing them at the new worksite. The U.S. Citizenship and Immigration Services finalized guidance based on the Simeio Solutions decision in a Policy Memorandum issued on July 21, 2015.

Where a new Labor Condition Application (LCA) used to suffice with a new worksite, H-1B employers are now required to file an amended or new H-1B petition as well. As you can imagine, this creates a lot of paperwork and increases costs for H-1B employers. There are some exceptions to the ruling:

  1. Same “intended area of employment” – If the H-1B employee is moving to a new position within the same metropolitan statistical area (MSA), no amended petition is necessary. The employer is required to post the original LCA at the new worksite as usual.
  2. Short-term placements – In certain cases, an H-1B employee can work at a new location for up to 30 days or in some situations up to 60 days without necessitating a new LCA. In those cases, no new or amended petition is necessary.
  3. Non-worksite locations – H-1B employees traveling for a development activity such as a conference or seminar, and those who spend little time at any one location are exempted from the need for a new or amended petition. And peripatetic employees are exempt if they spend no more than 5 consecutive workdays at the worksite location in any one visit.

Employers who have relocated H-1B employees not covered by the exceptions above need to prepare amended or new H-1B petitions. The Simeio decision is effective based on the following:

  • For H-1B employees relocated to a new worksite on or before April 9, 2015, employers must file a new or amended petition by January 15, 2016. Any employer who has received an intent-to-revoke notice due to the lack of amended petition may avoid revocation by filing the petition by this date.
  • For H-1B employees placed at a new worksite between April 9 and August 19, 2015, employers must file a new or amended petition by January 15, 2016 to be considered timely and to avoid adverse action.
  • For H-1B employees to be placed at a new worksite on or after August 19, 2015, employers must file a new or amended petition before employee starts working there.

If the rules seem complicated, that’s because they are. Compliance requires some thought, creativity, and careful management.

If you have assigned H-1B employees to new locations or are planning to, or have peripatetic H-1B employees, please call me at 630-587-7988 or e-mail me at jlentini@salawus.com so I can help you stay in compliance.

Fiscal Year 2014: H-1B Filing Date Coming Up Quickly

Contributed by Jacqueline Lentini McCullough

The H-1B visa category is used by employers hiring a foreign national in a professional-level position (“specialty occupation”) requiring at least a Bachelor’s degree or the equivalent.  Typically, H-1B petitions are filed for foreign nationals hired from abroad, or for F-1 and/or J-1 students who are currently working in the U.S. pursuant to student status work authorization. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1, 2013, with a start date of October 1, 2013 (FY 2014). 

There is an annual cap of 65,000 new H-1B petitions permitted per fiscal year, with an additional 20,000 H-1B’s available for foreign nationals who have earned a U.S. Master’s degree or higher, who are exempt from the H-1B cap. In addition the special rule pertaining to foreign nationals who have earned a U.S. Master’s degree or higher, petitions for new H-1B employment are exempt from the annual cap if the foreign national will work at an institution of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. 

While last year the H-1B cap was reached in mid-June, it is anticipated that the quota will be reached earlier this year. Of course no one has a crystal ball to say exactly when the cap will be exhausted. Consequently, it is advisable to file an H-1B petition by April 1, 2013.  Beware, the first step of the application process is filling the Labor Condition Application (LCA) with the Department of Labor, which can delay the application process.

Typically, it takes approximately five to seven days for an LCA to be certified, and the LCA must be certified before filing the H-1B petition with USCIS.