By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas
With the new policy memo released by USCIS recently, it is a good time to remind H-1B employers and employees of when exactly an amendment is required to ensure proper visa compliance. Not filing an amendment when required can have some pretty negative consequences, such as the H-1B employee failing to maintain status . . . which leaves room for later denials of extension of status. Nobody wants a denial when it could have been avoided.
There are two scenarios where amendments are required which Matter of Simeio (2015) established. Matter of Simeio has become somewhat of a household name by now (and if not, employers should take note). Here is a clear breakdown into the two scenarios that arise, under Matter of Simeio, that require an H-1B amendment to be filed.
(1) When the work location moves to another metropolitan statistical area ("metro area"):
Most employers who move their employees to different projects are well aware by now that amendments are definitely required whenever their employee's work location changes to a different metro area. How do we tell when the work location moves to another metro area?
The Executive Office of the President, Office of Management and Budget ("OMB") publishes from time to time a list of metro areas. Whenever an H-1B employee moves from one of the metro areas in this list, to another metro area in this list, this is when an amendment is required. The most recent OMB metro area list is dated as of August 15, 2017 and can be found here. For example, if the H-1B employee's work location moves from the Chicago-Naperville-Elgin, IL-IN-WI Metropolitan Statistical Area to Champaign-Urbana, IL Metropolitan Statistical Area, an amendment is required. Note that the OMB list of metro areas do change from time to time.
(2) When there is a "material change" in the terms and conditions of the work assignment:
This amendment scenario is not as clear as the first. What exactly does a "material change" in the work assignment mean? Unfortunately, current USCIS guidance does not verbatim state what a "material change" to a work assignment means. However, we do know, according to current USCIS policy, that Matter of Simeio is USCIS' go-to guidance on determining when an amendment is required.
Matter of Simeio does state that in the event of "a change to the terms and conditions of employment specified in the original petition, the petitioner must file an amended or new petition with USCIS with a corresponding LCA" per regulation 8 C.F.R. § 214.2(h)(2)(i)(E).
Putting all this legalese aside for a minute, the following changes to an H-1B employee's work assignment mean an amendment is required:
- When the job duties change. For example, if an employee may move from working in a Software Engineer - Applications capacity to a Quality Assurance Analyst capacity.
- A reduction in salary.
What if the client changes (even in the same metro area)? Currently, amendments for client changes have not been USCIS policy and are currently not required.
However, with USCIS' strict interpretation of regulation, it is open game for USCIS to start considering a client change (even in the same metro area) as a material change due to a change in the underlying relationships in the original petition. With USCIS' last policy memo regarding H-1B amendments, any new policy the agency puts into action will likely come with a safe-harbor period for employers to have time to file any new amendments that are then required. Any new policy updates regarding this issue will be monitored and shared.
It is important to remember that if an amendment is required, an employee cannot begin working at the new work location until the amendment is filed. Once the amendment is filed and USCIS receives the petition, the employee is then authorized to work at that new location and is then considered to be maintaining their status. Otherwise, if the amendment is not filed when required and the employee begins working at their new location, they are not authorized to work at that location and they are not maintaining their status (thus opening up possible future issues).
Overall, if an employer is uncertain when an amendment is required, it best to consult with a qualified immigration attorney to ensure proper H-1B visa compliance and avoid future issues.