Matter of SIMEIO SOLUTIONS, LLC: Change in Worksite to New Metropolitan Statistical Area (“MSA”), NOT Covered by Preexisting Labor Condition Application (“LCA”), Actually Filed with Immigration, REQUIRES an Amended H-1B Petition—At GREAT Risk of H-1B Petition Approval Revocation and Employee(s) Falling “Out of Status”
Short of filing a full-fletched, amended H-1B petition, when is filing a new LCA enough? Seemingly, on its face, a simple question, it is one that has caused great consternation, and disagreement among even the most seasoned of practitioners for years, in the case of “roving” H-1B employees.
Now, we have clarity. But regrettably, it is not “best-case”, particularly for those organizations in the business of information technology consulting.
Going forward (subject to some evasive “practice strategies”, noted below), when the location of even ongoing H-1B employment happens to change—so much so that a new MSA is implicated—it will be advisable to seek H-1B amendment, not simply file and subsequently secure in certified form, a new LCA. Matter of SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015), at 547-49, published on AILA InfoNet at Doc. No. 15040969. Whether or not “rightly decided”, Matter of SIMEIO SOLUTIONS, LLC makes this clear. The risk, at a minimum, is loss of your approved H-1B and affected employee(s)—as potentially “out of status” (lives and livelihood at risk). Id. at 544, 549; Email, USCIS (May 21, 2015), published on AILA InfoNet at Doc. No. 15052168. It is too high a price to try and get slick with this. We will have to comply, and do more. The Administrative Appeals Office (“AAO”) has spoken; they have final say. A little history should be recounted.
Back in 2003, an immigration official by the name of Efren Hernandez III responded to this question in a much more, well-received, stress- and hassle-free way. Responding to a public inquiry on what to do where the only potential “material” change in employment pertains merely to the worksite moving (of appreciable term), Hernandez advised that—provided you posted notice of the move before the individual was onsite—an amended H-1B petition was unnecessary; lesser, new LCA processing would suffice. Letter, Hernandez, Director, Business and Trade Branch, USCIS (Oct. 23, 2003), published on AILA InfoNet at Doc. No. 03112118. This provided a safe-harbor. Specifically, there was support—from a high-ranking, governmental authority with immigration—that LCA action alone would do. Id. Matter of SIMEIO SOLUTIONS, LLC changes and clarifies this, and not for the better. Referencing expressly the so-called “Hernandez letter”, the AAO writes: “[t]o the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded.” Matter of SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015), at 547, ftnt. 7, published on AILA InfoNet at Doc. No. 15040969. We, thus, have lost the safe-haven the Hernandez letter represented (for more than a decade). Strict compliance now could be more onerous, not to mention disruptive of business (amended H-1B petitions necessary when introducing prospective work in new MSA, where we could previously justify more minimal action; perhaps even more egregiously, EMPLOYEES SHOULD NOT BE TRANSFERRED UNTIL SUCH TIME AS AMENDED FILING HAS OCCURRED, WHICH WILL TAKE A SOLID TWO WEEKS TO ACHIEVE). But fail to follow suit—if they (immigration) choose to make it an issue—and you could lose your H-1B. Id. at 544, 549; Email, USCIS (May 21, 2015), published on AILA InfoNet at Doc. No. 15052168.
Adding to the headache this new case law represents, immigration—since Matter of SIMEIO SOLUTIONS, LLC was decided—has indicated we also now have to back-track, and become compliant with this “new normal” by August 19, 2015 as it relates to any “roving” H-1B employee, applicable employment relationship, associated H-1B file, etc. Email, USCIS (May 21, 2015), published on AILA InfoNet at Doc. No. 15052168. This is true even if, e.g., an employee moved to a new location in say 2014, covered at the time by the Hernandez letter. Id. They have stated they “will not take adverse action against you or your employees if you, in good faith, relied on [this] prior non-binding agency correspondence and did not file an amended petition”. Id. But you still have to get up to speed and become compliant by August 19, 2015. Id. For some of us, we have work to do.
The facts of Matter of SIMEIO SOLUTIONS, LLC are extreme. It involved what we call a “consular return”. Matter of SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015), at 543, published on AILA InfoNet at Doc. No. 15040969. This is where someone, previously approved for an H-1B, travels internationally and seeks a return, entry visa based on said prior approval (EXTREMELY COMMON, highlighting this is a big issue and real concern). The consulate, adjudicating the visa application and reviewing what came before, finds something it does not like (information that could have led to a different, initial result, had immigration domestically been aware of the same). In Matter of SIMEIO SOLUTIONS, LLC, this was a change in new client assignment. Id.
Once the file was back stateside (“consular return”), immigration chose to conduct a site inspection, and see what was up at the H-1B petitioner’s place of business. Id. When they went there, the company was gone. Id. at 544. An employee home was later identified as the company’s new “headquarters”. Id. Immigration, soon thereafter, yanked or withdrew the H-1B approval they previously had accorded. Id. Clinging to life in a last-ditch effort to save the sinking ship (responding to the intended revocation notice), a new Certified Labor Condition Application was introduced by the H-1B employer. Id. They were rejected as stand-alone insufficient in the absence of H-1B amendment. Id. at 544, 548-49.
Our clients and cases are not like this. We do not “fudge” petitions; companies do not disappear; we do not play games. But, unfortunately, the “holding” (or new rule of law this case provides) is not limited to wacky fact patterns, and suspect, questionable organizations. It is broader and will be widely applicable. Here it is:
“Because section 212(n) of the [Immigration and Nationality] Act ties the prevailing wage to the ‘area of employment,’ a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material for both the LCA and the Form I-129 visa petition, since such a change may affect eligibility under section 101(a)(15)(H) of the Act. See, e.g., 20 C.F.R. § 655.735(f) (2014).” Id. at 548 (emphasis added).
For this reason (including to determine prevailing wage is met), the AAO finds, H-1B amendment is necessary whenever a change in worksite (subject to some exceptions, discussed below) implicates a new MSA. Id. at 547-49. We may not like it. But this is what we will need to follow going forward. We will do our best and our part, as your immigration business partner, to keep fees as low as possible (recognizing the hassle).
Look to see if maybe MSA is not changing (despite worksite shifting). This would really be “lucking out”. It may not cover the vast majority of circumstances. One example of where it would be applicable would be, e.g., person is an H-1B employee of a given company’s New York City office; company has a major client account in New York City to which the individual “travels” and works offsite. In this example, there is not any change in MSA; prevailing wage is not impacted; and it is clear you need not seek to amend. Email, USCIS (May 21, 2015), published on AILA InfoNet at Doc. No. 15052168. Same would be true if, e.g., company headquarters and the person’s home-base happens to be in Cambridge; worker, then, is subsequently client-site assigned to a new work location in Boston for six months. Cambridge and Boston fall in the same MSA. None of this would apply. Again, we worry that this particular caveat will not have broad application. But it will be something to consider (where the resulting, geographical shift is not major). We would stress clients should not assume, e.g., that because the person would stay within the same county, that it is the same MSA. Often that is the case. But never assume. It is easy enough for us on our end to look up (virtually instantly). Note that where this applies (MSA remains constant, relieving you of the obligation to file to amend), you do still have to post standard LCA notice at the new location. Id.
Look at the “short-term placement” proviso. This is noted in the Matter of SIMEIO SOLUTIONS, LLC decision (as relieving H-1B employers, of individuals sent to work offsite at third-party facilities, of any associated H-1B amendment obligation). Matter of SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015), at 547, published on AILA InfoNet at Doc. No. 15040969. The problem is—as the title of the concept implies (“short-term”)—the “loophole” is limited. It would allow thirty (max.) or sixty workdays (max.) at a new location, not already covered by a preexisting, government-certified LCA. 20 C.F.R. § 655.735(c). But it is not “per project”. It is in the aggregate, over the course of any given, one-year period (either calendar or employer fiscal year). Id; 20 C.F.R. § 655.735(d). Further, as stated, its purview is capped at thirty or sixty (days). 20 C.F.R. § 655.735(c). For the larger of the two to apply (sixty days), the H-1B employee must have and keep an office or workstation at a permanent, petitioner place of business, where he/she “spends…substantial…time” (over the one year in part spent elsewhere), and must also live near the permanent “home base” (not the site where short-term placed). 20 C.F.R. § 655.735(c)(1); 20 C.F.R. § 655.735(c)(2); 20 C.F.R. § 655.735(c)(3). Otherwise, you get only thirty (max.). Again, while potentially helpful and sometimes validly applicable, the short-term placement allowance is limited. Other reasons this is true: (a) you cannot use it if you have an LCA in place for that job and location already; and (b) you so, too, cannot use it to support an initial assignment someplace other than what was originally stated and intended (as filed with immigration). 20 C.F.R. § 655.735(e). It also obligates the employer to pay for employee housing (to include non-workdays). 20 C.F.R. § 655.735(b)(3)(ii). This is in addition to “the actual cost of travel, meals and incidental or miscellaneous expenses (for both workdays and non-workdays).” 20 C.F.R. § 655.735(b)(3)(ii). In light of Matter of SIMEIO SOLUTIONS, LLC, invocation of the concept and its requirements should be very clearly and contemporaneously documented (planning for the now, much larger possibility of seeing a Notice of Intent to Revoke, that prior H-1B approval, issue). We would, again, also caution against getting slick with this. In the case of “long-term assignment to fixed sites”, they want to and will now expect to see paper-trails of correlating amended petition filings.
Examine the business-feasibility of doing more from petitioner office-space (rather than offsite at changing, third-party, client locations). The change in worksite is the triggering issue. Remove it and the case law becomes moot. We, however, worry about business interference (causing the business model to bend or give as the preferred approach to take and adopt). It is bad enough that—where H-1B amendment is necessary under Matter of SIMEIO SOLUTIONS, LLC—they have stated you need to build and file the amendment first (plan on two weeks) before you can move the resource. Email, USCIS (May 21, 2015), published on AILA InfoNet at Doc. No. 15052168. That, alone, is disruptive and aggravating (as the pace of business is fast, and client needs can change overnight).
Consider favoring the Employment Authorization Document (“EAD”), over the H-1B, where you can. This suggestion may not have super broad, beneficial application. But some employees (particularly where Indian or Chinese by birth, deep in the green card process, and appreciably experienced) may have both a valid EAD and H-1B. The headache, discussed here, does not apply to EAD-based employment, only that driven by vehicle of H-1. If you happen to have “the best of both worlds”, you can let the H-1B go, strictly rely on the EAD, and make all this moot in a way employers might welcome and appreciate. E-Verify employers, hiring new graduates with “STEM” degrees (in science, technology, engineering, or mathematics), can adopt this line of thought as well—while still attempting those precious, cap-subject, H-1B petition opportunities that (these days) come around but once a year. It is hard and dangerous to pass on a chance to make a run. So don’t. Submit the CAP case, or a series of them as the case may be today—just do not request change of status (where practical). This enables you (hopefully) to make the CAP case work, while still prolonging the period (as many as twenty-nine months) in which the basis of the employment can be EAD, not H-1B—silencing (at least for some time) Matter of SIMEIO SOLUTIONS, LLC and its attendant frustrations.
File rich (even if speculative) petitions, covering a number of potential work locations. This may be hard to implement, may be hard to predict. But if you can identify, e.g., three possible worksite options, you can structure your H-1B such that it can accommodate any of the three. The larger the company, the more clients you have, the less practical this could become.
Look at whether the new location does not rise to the level of a “worksite”. This carve-out (while “on the books”) is extensive, restrictive, nebulous, and convoluted. The meaning behind certain key phrases, how given concepts can be comfortably used, relied upon, etc., can be hard to discern. This section of the regulations, in our view, has always been tricky. It can tend to leave one with more questions than it does answers. But it does provide a framework whereby any of the following are not considered “worksites”, relieving you of any obligation to undertake extra action (filing of amended H-1B specifically): “[W]orker…stationed and regularly work[ing] at one location may temporarily be at another location for a particular individual or employer-required developmental activity such as a management conference, a staff seminar, or a formal training course (other than ‘on-the-job-training’…).” 20 C.F.R. § 655.715. New place where sent “temporarily” can be a third-party site. Id. If H-1Bs, however, when at the new location, serve “as instructors or resource or support staff”, this potential “way out” then would not apply (you would have a new “worksite”, prompting action). Id.
“[F]requent changes of location with little time spent at any one”, AND:
“[J]ob must be peripatetic in nature” based on its “normal duties…rather than the nature of the employer’s business…[as] requir[ing] frequent travel (local or non-local) from location to location”; OR “duties must require that he/she spend most work time at one location but occasionally travel for short periods to work at other locations”; AND
Time spent away “from the ‘home’ worksite [must be] 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)”—and you would have to track all this; AND
The person cannot be a “strikebreaker”. Id.
Again, the convoluted nature of these provisions, the difficulty processing and understanding them (even on our end), etc., presents some level of difficulty in purporting to use. Perhaps in recognition of this, the regulations do give examples of both “non-worksite” (no action required) and “worksite” settings (for which now need to amend). The “non” list would consist of: computer troubleshooting at client sites; sales calls within “home worksite” territory; personnel management activity involving “out-stationed employees”; financial auditing services performed at third-party, client sites; physical therapy services administered at patient homes, all within a “normal commuting distance” of the person’s home-base site; going to court; business lunches; and library research. Id. As for the “worksite” examples (where we would need to take action), they are these (and in particular note the first): “[a] computer engineer…work[ing] on projects or accounts at different locations for weeks or months at a time”; regular sales calls beyond a “home worksite” territory; lengthy financial auditing services performed at third-party, client sites; full-time, “fill in” physical therapist for appreciable length of time; and the case of an ad hoc, physical therapist with a staffing agency. Id.
NOTE OF CAUTION: Clients should not seek to operate according to the “plain meaning” of words and phrases that are used here. That can be dangerous; research should be performed and counsel sought. The Department of Labor has for years now had a webpage devoted to this. We reference it in all of our LCA Instruction Letters, sent in all our H-1B cases. The link is: HYPERLINK “http://webapps.dol.gov/elaws/ h1b/rs1.aspx” http://webapps.dol.gov/elaws/ h1b/rs1.aspx. More information can be found there. We would, again, caution that this—as the “easy way out”—could be met with skepticism. Even regulation provides that “[i]n determining the worker’s ‘place of employment’ or ‘worksite,’ the Department will look carefully at situations which appear to be contrived or abusive”. Id. But if, regardless, this caveat really does seem applicable, and we research and together can document its appropriateness, it can be an option to consider. Tread carefully, however, and remember they are really expecting to see amendments filed (not crafty lawyering). This is unfortunately QUITE BIG in immigration 2015 today.
There is a way you can amend (i.e., without requesting extension of stay) more cost-effectively where it makes sense to do so.
Internal protocols, on the employer end, will need to be added, heightened or bolstered (perhaps via technology), so as to anticipate changes sooner (three-four-five weeks early), in addition to modifying operational logistics, adjusting business operations, etc. (as will need more lead-time to ensure compliance—something your clients will need to know as well). We know this is significant, will be hard, and will not be well-received. Especially in high technology, business moves swiftly; this will now run counter to that—dragging or slowing things down.
To highlight how big this is, note that there were approximately eight hundred, RSVP participants on a late-April call with USCIS regarding this. Also, the AAO decision at the center of the madness is just the eleventh, binding, precedent decision from the AAO ever (and just the sixth since the Department of Homeland Security was formed in 2003). So when they speak, it is BIG!
This, in and of itself, was borderline fraud. Petitioner (employer) had represented it was an in-house role. Id.
Part of the problem is a lack of clear, regulatory guidance regarding what does and does not constitute “material change”, as warranting H-1B amendment. AAO has now said this (the larger issue and circumstance contemplated) is material. Id. at 548.
We would caution that because change in worksite is now “material change”, you do lose your re-adjudication protection. This means deference does not necessarily need to be accorded to prior approval(s) involving same person, petitioning company, and job. In that they can now “re-adjudicate” prior finding(s) of eligibility on this ground, where the same happens to be exercised, it could compound the level of work entailed on our end (in turn impacting fees). But it is important to us to try and keep these down. That is one main goal.
Nor to L-1, TN, F-1 OPT, etc.
Note that even if so, you still have to reimburse employee travel expenses no matter what. 20 C.F.R. § 655.715.
The color-coding is intended to help connect text in the two passages.
Deferred Action for Childhood Arrivals
Notes on Deferred Action
A person is eligible if he/she:
1. Was under the age of 31 as of June 15, 2012;
2. Came to the U.S. before reaching his/her 16th birthday;
3. Has continuously resided in the U.S. since June 15, 2007, up to the present time, barring brief, casual absences (see below)
• The absence was short and reasonably calculated to accomplish the purpose for the absence;
• The absence was not because of an order of exclusion, deportation, or removal;
• The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before being placed in exclusion, deportation, or removal proceedings; and
• The purpose of the absence and/or his or her actions while outside the United States were not contrary to law.
• HOWEVER, after August 15, 2012, if the applicant travels outside of the United States, he/she will not be considered for deferred action under this process (regardless of whether or not he/she has requested it).
4. Was physically present in the U.S. on June 15, 2012, and at the time of application to USCIS;
5. Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
6. Is currently in school (enrolled in school on the date a request for consideration of deferred action is submitted), has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
7. Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;
1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
8. Is at least 15 years of age or older at the time of filing, and meets the other guidelines.
Examples of documentation to prove that you arrived in the US before age 16, that you have resided in the US for at least five years, and that you were physically present in the US on June 15, 2012:
Examples of documentation to prove that you are currently in school, have graduated from high school, or have obtained a general education development certificate (GED):
Examples of documentation to prove that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States:
Notes Regarding Other Offenses
1. Required Forms:
2. Required filing fees:
3. Mail forms and fees to the proper location
In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:
For evidence, USCIS will:
Please check the USCIS website (listed below) for the most current information.