On April 9, 2015, the Administrative Appeals Office of the USCIS issued a landmark H-1B decision, Matter of Simeio Solutions LLC (I&N Dec. 542). Under this decision anytime an H-1B employee changes location of work requiring a new Labor Condition Application (LCA), the employer must also file a new or amended H-1B petition. A new LCA is not required if the new location of work is within the same Metropolitan Statistical Area or commuting distance as the previous location. This decision overturns the USCIS policy that had been in effect for more than 10 years. Under the old policy, the mere change of location was not deemed a material change requiring the filing of an amended H-1B petition.
- Longer wait time before starting work at the new location. The Decision requires the “immediate” filing of an amended H-1B petition whenever the new LCA is required due to a change in job site. This means that an employer should not have the employee work in the new location until the new LCA has been approved and the new H-1B petition has been received by the USCIS (about 1-2 weeks).
- Increased Costs for H-1B Employees. If no extension of time is requested on the H-1B petition, the filing fee is $325. If additional time is requested, the filing fee may be as high as $2325. The amended H-1B petition may be accepted by USCIS without all the documentation of a regular H-1B petition so legal fees could be reduced. However, it is equally possible that the USCIS will require full documents on the amended petition, so there will not be any legal fee reduction due to ‘economies of scale.’
- Slower processing times at the USCIS. The top 25 H-1B employers typically file LCAs for 70,000 H-1B positions each year. In only a tiny fraction of these cases did the employer file an amended H-1B petition. A random search of LCAs showed less than 1% were filed in connection with an amended H-1B petition (see example). We can expect that the number of amended H-1B petitions filed with the USCIS will increase dramatically, leading to longer average processing times. Employer may be able to avoid these delays only by paying for premium processing.
- Amended H-1B and new LCA for Bench Time. It has long been the rule that the H-1B employee must continue to be paid the rate stated on the LCA, even when on the bench. Typically, the employee spends bench time at home. Under this Decision, a new LCA and amended H-1B petition will be required for the employee’s home address, unless the home address was listed on the LCA or is within commuting distance or the same MSA as a location of work listed on the LCA.
- More Level Playing Field: California and Vermont. Although habitually denied by the USCIS, petitioners have long seen dramatic differences in adjudication policies between the California and Vermont Service Centers of the USCIS. In fact, it was the California Service Center which revoked the H-1B petition that came before the AAO in the Simeio Solutions case. While petitioners on the West Coast have dealt with random revocations on this issue from the California Service Center, East Coast petitioners were given a free pass. Since the AAO decisions bind both the California and Vermont Service Centers, we can expect a more level playing field between West Coast and East Coast petitioners.
- No change in processing times at the Dept of Labor. The new decision only requires additional filings of H-1B petitions; it does not require any additional LCA processing so we can expect no impact on LCA processing time.