Last Friday, the USCIS Administrative Appeals Office (or AAO) issued a precedent decision in a case called Matter of Simeio Solutions, LLC.
The decision involved the revocation of an H-1B petition for an employer which had failed to list the locations of actual employment of an information technology consultant on its H-1B petition. The AAO used its decision upholding this revocation to enunciate a broad rule applicable to all H-1B employers: “A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to DHS with respect to that beneficiary may affect eligibility for H−1B status; it is therefore a material change” that requires filling a new H-1B petition.
As a decision designated as precedent, this new rule is “legally binding on the DHS components responsible for enforcing immigration laws in all proceedings involving the same issue or issues,” as explained by the USCIS website, and therefore future adjudicators will have to regard the movement of any H-1B employee to a new geographical area as requiring the submission of an amended H-1B petition, even if there are no other changes in the terms and conditions of employment, and regardless of whether the employer’s salary exceeds the required wage in the new geographic area.
Employers should review their practices with regard to H-1B employees, including tracking when they are assigned to new worksites not previously covered by a Labor Condition Application, and how many geographic locations of potential employment they identify in their H-1B petition filings. To comply with the new rule, it is not clear whether it is enough for an employer to have a pre-existing LCA covering the location of employment, and pay the H-1B employee in accordance with that LCA. Having such an LCA and paying the employee under it would satisfy the Department of Labor regulations on LCAs, but it may no longer satisfy USCIS, given the broad language of this precedent decision.
H-1B employers and their H-1B employees may wish to challenge this rule. If challenged in court, USCIS will likely assert that the Simeio decision merely interprets an existing regulation. Employers can point to cases in which courts have distinguished between “interpretations” (which do not require advance notice to the public) and “substantive rules” (which require notice and public comment according to the Administrative Procedures Act). Where a formal, binding decision like this one changes an agency’s policies, courts have held that notice and comment by the public is necessary for the rule to be valid.
Employers who would like a review of their H-1B practices should feel free to contact a Klasko Immigration Law Partners attorney.