As discussed in our recently co-authored Article, H-1B AMENDMENTS POST-SIMEIO SOLUTIONS: WHY CIS SHOULD CONSIDER TAKING OFF THE RETROACTIVITY ASPECT FROM THE “DRAFT” GUIDANCE, United States Citizenship and Immigration Services (USCIS) in its revised Final Guidance, that came out on July 21, 2015, suggests that the Simeio Solutions decision will not be applied retroactively, which is a significant departure from the USCIS’ Draft Guidance.

1. FROM “MUST” TO “MAY” ON RETROACTIVITY ASPECT: USCIS ISSUES FINAL
GUIDANCE ON WHEN TO SUBMIT H-1B AMENDED PETITION.
By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.
As discussed in our recently co-authored Article, H-1B AMENDMENTS POST-SIMEIO
SOLUTIONS: WHY CIS SHOULD CONSIDER TAKING OFF THE RETROACTIVITYASPECT
FROM THE “DRAFT” GUIDANCE, United States Citizenship and Immigration Services
(USCIS) in its revised Final Guidance, that came out on July 21, 2015, suggests that the Simeio
Solutions decision1 will not be applied retroactively, which is a significant departure from the
USCIS’ Draft Guidance.
As discussed in our above-mentioned article, in Simeio Solutions, the AAO specifically stated
that when H-1B employees change their place of employment to a worksite location that
requires employers to certify a new Labor Condition Application (LCA) for nonimmigrant
workers to the Department of Homeland Security, this change may affectthe employee’s
eligibility for H-1B status; it is therefore a material change for purposes.
Because the decision was not very clear as to whether the AAO only referred to a move outside
the Metropolitan Statistical Area (MSA), the DHS Ombudsman call on April 30, 2015, clarified
that amended petitions will be required only for movement of H-1B workers outside the MSA
listed on the LCA. Then, just when the new changes regarding H-1B amendments started to
sink-in, came the surprise. On May 21, 2015, USCIS issued guidance instructing employers to
submit an amended petitions for employees who changed worksite locations prior to the
issuance of Simeio Solutions decision.
Specifically, employers were asked to submit amended H-1B petition(s) if they, in good faith,
relied on prior non-binding agency correspondence and did not file an amended petition due to
a change in an MSA or area of intended employment. The employers were asked to submit such
amended petitions by August 19, 2015. Six days later, on May 27,2015, USCIS updated its
guidance to reflect that the guidance was in a “draft” form, and that comments would be
accepted “for a limited period of time.”
USCIS’ final guidance provides much needed relief to the companies, especially the technology
companies, employing considerable amount of workforce in the United States on H-1B visas as
the cost of filing amended H-1B petitions on behalf of their employees prior to the issuance of
Simeio Solutions decision could have imposed significant burden in terms of cost, time and
manpower.
So, how does the new guidance helps the H-1B employers, and when they are required to
submit H-1B petitions. As per the new memo, if an H-1B worker moved to a new location not
covered by the existing petition prior to or on April 9, 2015,the date on which Simeio Solutions
decision was published, the “…USCIS will generally not pursue new adverse actions (e.g.,
1 Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

2. denials or revocations) solely based upon a failure to file an amended or new petition.” In
simple language, an H-1B amended petition involving a location change outside of an MSA
would be required if the change happened after April 9, 2015.Note that this memo will not
protect employers if adverse action was initiated prior to July 21, 2015.
Further, this memo provide a Safe Harbor Period, for all moves requiring an H-1B amended
petition, which happened between April 9, 2015, and August 19,2015. If any move happened
during this period then petitioning employers must submit H-1B amended petition by January
15, 2016. Additionally, any change in place of employment (outside the MSA listed on the LCA)
after August 19, 2015,would require an amended H-1B Petition. For quick reference, here is a
snapshot of when to submit H-1B amended petitions.
Date of Employee(S) Movement Outside
The MSA Listed on LCA.
What Action Needs to be Taken?
On or before April 9, 2015. No amended H-1B petition required.
On or before April 9, 2015. Must submit H-1B amended petition by
January 15, 2016.
After August 19, 2015. Must submit H-1B amended petition.
The revised final guidance reconfirmed that an amended H-1B petition is not required if the
geographical move is within the MSA. However, the petitioner is required to post the original
LCA at the new work location. Similarly, an amended H-1B petition is not required if the H-1B
employee is attending training sessions, seminars, conferences, etc. of a short duration ata
location not listed on the LCA. Further, H-1B amended petition need not be submitted to USCIS
for short-term placements of up to 30 days, or in some case up to 60 days (where employee is
still based at “home” worksite).
Last but not the least; the revised final guidance confirms that if an employer’s amended H-1B
petition is denied, but the original petition remains valid, the H-1B employee may return to
work at the place of employment covered by the original petition.