H-1B Amendments a Year Later: Remaining Issues Post-Simeio
By Attorney Julia Funke
In July 2015, USCIS issued its “Final Guidance on When to File an Amended or New H-1B Petition after Matter of Simeio Solutions, LLC.” While the Final Guidance gave some insight on how to proceed post-Simeio, H-1B Petitioners and USCIS alike are still struggling a year later with some common situations for which answers remain unclear.
Here are the things we know from the Final Guidance:
- An amendment MUST be filed before the beneficiary changes work locations, if the new work location is in a different Metropolitan Statistical Area.
- If an amendment is denied and the underlying petition is still valid, the beneficiary can return working to the original place of employment, as long as there is still work available at that location.
- If an amendment is pending and the work location again changes, the petitioner can file another amendment.
- If an amendment is pending and the beneficiary must travel outside the U.S., the beneficiary must carry an unexpired passport and H-1B visa, the previous H-1B approval notice and I-94, as well as the new H-1B amendment receipt notice. ILBSG also recommends that the beneficiary carry the new work itinerary documents and a letter form the employer/petitioner, verifying the project changed and amendment was filed and remains pending.
Here are the things that are still unclear:
If an amendment is filed and the work location changes and a second amendment is filed, what should be done with the first amendment, if it is still pending? This remains trial and error, as USCIS has offered zero guidance on this issue. ILBSG has sent requests to USCIS explaining a second amendment was filed and requesting the first amendment be approved for the duration between the first amendment receipt date and the second amendment receipt date. The results of these requests have not been consistent, as it appears USCIS is unsure what to do in these situations as well. If nothing is done, you may receive a Request for Evidence on the second amendment, stating it cannot be adjudicated until the first amendment receives a final decision. ILBSG has encountered this several times. The other alternative is to send a withdrawal notice, which increasingly seems to be the best option. If you withdraw the first amendment after a second amendment is filed, you should wait to receive the receipt notice for the second amendment before withdrawing. The receipt notice allows the beneficiary to work at the amendment location, so you will have receipt notices documenting each work location with the corresponding LCA to prove maintenance of status and Simeio compliance later on. Until USCIS issues official guidance on how to proceed when multiple amendments are filed, ILBSG recommends withdrawing previous pending amendments after the receipt notice for a subsequent amendment is filed, as long as the previous amendment is not an amendment plus extension petition.
While the Final Guidance by USCIS permits a beneficiary to travel with a pending amendment, it does not address the complications that can arise should a beneficiary in fact travel. ILBSG advises all clients that traveling is NOT a good idea if an amendment is pending. If a beneficiary travels and re-enters the U.S. before the amendment is approved, the beneficiary will receive a new I-94 number when entering. If the amendment is then approved after the beneficiary re-enters, the most recent approval notice will have the old I-94 number. Mismatched I-94 numbers in government databases can create confusion later on, like when a beneficiary is renewing a driver’s license, so it is better to avoid this kind of situation. Further, if a beneficiary does not have an H-1B visa and has to go for stamping before re-entering, the beneficiary may encounter complications at the visa appointment. The beneficiary will have to provide the new work itinerary documents at stamping with the amendment receipt, as presenting only the previous work itinerary documents would be a misrepresentation if that is no longer the current project. This could raise questions or become a problem, if the beneficiary cannot produce a client letter for the new project. ILBSG recommends waiting for the amendment to be approved before travel, which can always be expedited through premium processing, for an additional fee of $1,225.
What if your H-1B is not valid until October 1st, but the work location is changing now? This situation can arise for quota H-1B beneficiaries who are currently working on OPT. Since the beneficiary is on OPT, the beneficiary can change work locations without a problem. (Please note if the beneficiary is on the new STEM OPT extension, however, a work site change will require a new I-983 be provided to the beneficiary’s school). However, when the beneficiary’s status automatically changes on October 1, an amendment will need to be filed that same day before the beneficiary can start working at the new location. This means it will need to be prepared ahead of time and ready to go. Complications may arise if the project changes before the H-1B is approved and an RFE is issued. This can be tricky. While you can respond to the RFE explaining to USCIS that while on OPT, the beneficiary is working at the new location but will return to work at the certified location on October 1 when the H-1B becomes valid, USCIS may or may not accept this explanation, which could result in an adverse decision. Any explanation to this effect will have to be supported by valid client letters and other documentation. Until USCIS provides some guidance on this issue, Petitioners remain in uncharted waters.
Please check back for updates as we continue to navigate life post-Simeio.