By Mahsa Aliaskari
Thanks to a revised guidance memo from U.S. Citizenship and Immigration Service (USCIS), the summer scramble to file H-1B amendments spurred by the April 9, 2015 Administrative Appeals office (AAO) decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) is over, or at least now it is in slow motion.
After issuing draft guidance on June 9th, USCIS revisited and amended some of the new guidelines and filing deadlines associated with H-1B worksite changes. While Simeio remains a precedent decision, despite requests from business groups to downgrade the decision to a non-precedent case, at least now H-1B employers have a little more time to ensure compliance – if they can correctly decipher the updated guidelines.
The revised final guidance issued on July 21, 2015 extended the deadline for filing H-1B amendments to rectify previous violations in worksite changes from August 15, 2015 to January 15, 2016. The more interesting or curious part of the memo relates to the consequences an employer may face if amendments are not filed for violations taking place prior to the Simeio decision. The first round of the memo required amendments and clearly applied Simeio retroactively across the board. The final version includes a more ambivalent “guideline,” indicating that the USCIS would “generally” not take adverse actions against employers failing to file amended petitions for violations prior to April 9, 2015. Meanwhile, this final version of the memo also provides a “safe harbor period” for H-1B employers with pre-Simeio violations who still “choose” to file amended H-1B petitions, as long as the amendment is filed by January 15, 2016. This leaves one to wonder, if no adverse action will be taken, why is a “safer harbor” necessary?
To amend or not to amend—which route an H-1B employer will take or should take—will depend on several factors, including, among others, the number of amendments that need to be filed, ability to identify past violations, man power, and funding. Serious consideration should be given to filing amendments for past violations, as the USCIS can amend its guidance at any time (something we have seen often). In light of USCIS’ Fraud Detection unit conducting work site visits for H-1B workers, the Simeio decision, and this new policy guidance, we can expect to see more on-site visits and greater scrutiny of H-1B usage by employers. With that in mind, compliance at all levels is becoming ever more important. For H-1B employers that have not started an internal review, with this final guidance memo, now might be a good time.
By Mahsa Aliaskari