When to File Amended or New H-1B Petition

In our previous writing – NewAlert! August 19, 2015 Deadline For Filing Amended H-1B Petitions – we advised our readers of the U.S. Citizenship and Immigration Services (USCIS) May 21, 2015, Draft Guidance on when to file an amended H-1B petition based on its interpretation of the April 9, 2015, Administrative Appeals Office (AAO) precedential decision Matter of Simeio Solutions, LLC.

Now, on July 21, 2015, USCIS issued a Policy Memorandum implementing Final Guidance which supplements the Draft Guidance and constructs a date based framework on when to file an amended or new H-1B petition after Simeio Solutions. The July 2015 Final Guidance states it is effective immediately and shall be used to guide determinations by USCIS employees.

According to the July 2015 Final Guidance, whether and when an amended or new H-1B petition is required as a result of a geographic change in worksite location hinge upon three significant date based categories:

• Place of employment changes on or before April 9, 2015 – the date of the Simeio Solutions decision;
• Place of employment changes after April 9, 2015 but prior to August 19, 2015 – the filing deadline originally set forth in the May 2015 Draft Guidance; and
• Place of employment changes on or after August 19, 2015.

Under the Final Guidance, if an H-1B employee moved to a new place of employment on or before April 9, 2015:

• The H-1B employer may choose to file a new or amended petition by the safe harbor filing deadline of January 15, 2016;
• Even if a petition is not filed by January 15, 2016, USCIS will generally not pursue new revocations or denials based upon failure to file a new or amended petition – but actions already in process prior to July 21, 2015 (the date of the Final Guidance) such as notices of intent to revoke stand; and,
• Subject to certain requirements and exceptions, if there is a pending action in process and the applicable response period has not ended – an amended or new petition prior to the response deadline may avert adverse action.

Under the Final Guidance, if an H-1B employee moved to a new place of employment after April 9, 2015 but prior to August 19, 2015:

• The H-1B employer must file an amended or new petition by January 15, 2016;
• Subject to certain requirements and exceptions, if there is a pending action in process and the applicable response period has not ended – an amended or new petition prior to the response deadline may avert adverse action.

Under the Final Guidance, if an H-1B employee moved to a new place of employment on or after August 19, 2015:

• The H-1B employer must file an amended or new petition before an H-1B employee starts working at a new place of employment.

The above is a general synopsis of the USCIS policy and guidance flowing from the Simeio Solutions decision. Due to the recentness of the policy’s evolution and case by case fact specific inquires – it is strongly recommended those potentially affected consult an experienced immigration attorney, such as Asheesh Sharma, a highly rated immigration lawyer in Atlanta, before proceeding.