Executive Summary: On July 21, 2015, USCIS issued Final Guidance for agency adjudicators regarding applying the precedent decision, Matter of Simeio Solutions, LLC. As we previously reported, Matter of Simeio radically reinterpreted the agency's H-1B regulations retroactively to require filing an amended petition whenever an H-1B temporary worker is moved to a worksite not identified in an approved or pending petition that requires a new, certified labor condition application (LCA). On May 21, 2015, USCIS issued, for notice and comment, Proposed Guidance regarding implementing Matter of Simeio – Guidance we believed to be flawed, as discussed in more extended commentary. The Final Guidance continues to raise serious concerns for employers in the business and IT consulting industry who are most threatened by the Simeio rule.
The Final Guidance Pleases Many U.S. Companies
Many in the business community were outraged that USCIS would radically revise the circumstances under which employers would have to file amended H-1B petitions without complying with the notice and comment provisions of the Administrative Procedures Act (APA) – and to apply the rules retroactively, punitively, and at great economic cost. While the Final Guidance ignores the business community's request for the withdrawal of Matter of Simeio and compliance with the APA rulemaking process, the Final Guidance contains these compromises that pleased major business groups: (1) it enlarges the safe harbor period for filing timely amended petitions from August 19, 2015 to January 15, 2016, regarding post-Simeio worksite transfers that occur between April 9, 2015 and August 19, 2015; (2) it permits employers to file amended petitions for worksite transfers that occur on and after August 19, 2015, up to January 15, 2015, without risking an adverse action or status violation; and (3) it states that USCIS, in its discretion, will not pursue new adverse actions (e.g., denials or revocations) solely based upon failing to file an amended or new petition pre-Simeio after July 21, 2015 (the date of the Final Guidance).
So What's There To Be Concerned About?
Plenty. Foremost, the Final Guidance states it is for training purposes only and "is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law or by any individual or other party in any removal proceedings, in litigation with the United States, or in any other form or manner." The bottom line is that the Guidance does not have the force or effect of law. For that, a regulation is needed – or a precedent decision, such as Matter of Simeio Solutions, LLC. Hence, if USCIS revokes or denies a petition under Matter of Simeio and the employer challenges the decision in court citing the Final Guidance, the employer loses.
Second, under the Final Guidance itself, USCIS has preserved the right to deny or revoke an H-1B petition based on a pre-Simeio relocation without amendment violation, in its sole discretion – and without guidance to adjudicators regarding how that discretion is to be exercised. As we previously observed, it is highly likely that LCA wage, posting or public access file violations discovered and reported by FDNS investigators could be cited by adjudicators as violations supporting the exercise of unfavorable discretion. We strongly recommend that H-1B sponsors work with their immigration compliance counsel to ensure that any LCA compliance violations are identified and corrected before January 15, 2016 – or by whatever date the company determines it will file amended petitions to comply with Matter of Simeio. If your company has already received an RFE or revocation notice that is Simeio-related, there is an even more urgent need for an LCA compliance check up to ensure you are not cited by DOL or FDNS for a violation that could have serious consequences upon the company's visa sponsorship programs in the United States.
If you have any questions regarding the Final Guidance or the impact of Matter of Simeio Solutions, LLC on your H-1B program, please contact Geetha Adinata, gadinata@fordharrison.com or Charles Roach, croach@fordharrison.com, all of whom are members of FordHarrison's Immigration practice group. You may also contact the FordHarrison attorney with whom you usually work.