rs by direct electronic communication such as email (i.e.., a single, personal email message to each such employee) or by arranging to have the notice appear for ten days on an intranet, which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees).It is important to remember that while H-1B employers may provide electronic notice on their public websites via a menu bar that provides links to all electronic notifications for each of their worksites, affected employees at third-party worksites should be informed of the posting and be able to determine which postings relate to their worksite.The notice must be readily available to the affected employees, must contain the required content, and comply with all of the notice provisions of 20 CFR § 655.734, and the employer must document and retain evidence of the notice that it provided in its public access file under 20 CFR § 655.760.Matter of Simeio Solutions, LLC 26 I&N Dec. 542 (AAO 2015). See March 15, 2019 U.S. Department of Labor, Wage and Hour Division, Field Assistance Bulletin No. 2019-3 regarding Compliance with the H-1B Notice Requirement by Electronic Posting.[View source.]

oyers (defined as an entity with a unique FEIN) who operate under multiple legal entities should ensure that H1B employees are on the payroll of the legal entity that filed the H-1B petition.I-9 Verification – Employees who were working pursuant to the USCIS Cap Gap (See USCIS Cap Gap Guidance) with an expired student Employment Authorization Document (EAD) must reverify their work authorization pursuant to their new H1B status. Employers should carefully review the I-9 employers’ handbook to ensure they comply with all relevant I-9 regulations.What action should employers take if there are changes to the conditions of employment?Employers must file an H-1B amendment prior to making any material changes to the terms and conditions of employment for an H-1B employee. Importantly, a change in worksite location outside the metropolitan statistical area, of the worksite locations identified in the H-1B petition and LCA, is considered a material change. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A).Accordingly, if employers have listed a home worksite in the H-1B petition and LCA, they must remain vigilant in communication with employees regarding the need for employees to inform human resources or the legal team prior to moving.Should employers make any changes to tax withholdings for new H-1B employees?The IRS has noted that, under relevant regulations, employees on certain student non-immigrant statuses (F-1, J-1, M-1, and Q-1) are not subject to FICA tax. However, once those employees’ H-1B change of status becomes effective, an employer must begin withholding FICA taxes. (IRS Guidance on H-1B Change of Status)What additional steps should employers take to ensure new H-1B employees can maintain seamless work authorization?Employees may only remain in the United States in H-1B status for 6 years, unless they are eligible for an extension based on a pending PERM application or an approved I-140 immigrant petition. 8 C.F.R. §§ 214.2

FY 2015 RFE rate for H-1B petitions at the California Service Center (CSC) declined ten percent from FY 2014, and is now aligned with the Vermont Service Center (VSC) rate, which also decreased slightly in FY 2015, to 23 percent. The impact of the precedent decision Simeio, 26 I&N Dec. 542 (AAO 2015) (holding that petitioners must file an amended or new H-1B petition with the corresponding labor condition application (LCA) if an employee moves to a new work location that is outside the area of employment covered by the previous LCA) has not yet become apparent, as the agency's guidance on Simeio was not issued until late in FY 2015. [For a full discussion on the Simeio decision and its impact, see our prior post: http://immigration.bakerdonelson.com/changed-locations-require-new-h-1b-petition-not-just-lca/] However, the report notes stakeholders receive RFEs requesting information unrelated to the reason for filing the amendment.

As of August 19, 2015, full enforcement of a recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) will commence. On April 9, 2015, the AAO—the appellate body for U.S. Citizenship and Immigration Services (USCIS)—issued the Simeio decision,which creates new obligations for employers with H-1B employees.

Department of Labor Issues Guidance on Proper Classification of Workers Under the Fair Labor Standard ActPremium Processing Option for H-1B Extensions Is Temporarily SuspendedDistrict Court Finds California Agency Violated Title VII Based on the Disparate Impact of Employment Questionnaire California Farm Labor Contractor Company Found to Have Committed Citizenship DiscriminationPennsylvania Company Pleads Guilty to Harboring Illegal Aliens OCAHO Imposes $600,000 Fine for Form I-9 ViolationsDOS Issues August 2015 Visa Bulletin *****************************************************************I. USCIS Issues Guidance on When an Amended H-1B Petition Is Required After Matter of Simeio Solutions, LLC On July 21, 2015, the U.S. Citizenship and Immigration Services (“USCIS”) released a policy memorandum (“Memorandum”) on when a new or amended H-1B petition is required. This guidance follows the recent Administrative Appeals Office (“AAO”) decision in Matter of Simeio Solutions, 26 I&N Dec. 542 (AAO April 9, 2015). In Simeio Solutions, the AAO announced a broad rule that would have required an amended H-1B petition whenever an employee’s job location changed, even if it was only to a neighboring building!

On April 9, 2015, AAO clarified that an employer must file an amended or new H-1B petition when a new Labor Condition Application (LCA) for nonimmigrant workers is required due to a change in the H-1B worker’s place of employment. Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). The decision stated:“A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to the Department of Homeland Security (DHS) with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R §§214(h)(2)(i)(E)and (11)(i)(A)(2014).”

Although USCIS Service Centers began to take a more restrictive approach to worksite location changes during site visits, USCIS still did not alter its policy. That is, of course, until the Administrative Appeals Office (AAO) issued its precedent setting decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) (referred to as Simeio) this spring. In Simeio, the AAO ruled that employers must file amended petitions with USCIS when an H-1B employee moves to a new worksite that was not specified in the initial petition or the certified LCA: 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 the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.

As previously reported, on April 9, 2015, the Administrative Appeals Office (AAO), which is responsible for the review of certain decisions rendered by U.S. Citizenship and Immigration Services (USCIS), issued a published decision in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), holding that: A change in the place of employment of a beneficiary to a geographical arearequiring a corresponding Labor Condition Application(LCA) to be certified with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material changefor purposes of the immigration regulations. When there is a material change in the terms and conditions of employment, thepetitioner must file an amended or new H−1B petition with the corresponding LCA.

On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a precedential decision (Matter of Simeio Solutions, 26 I&N Dec. 542) that significantly impacts U.S. employers employing H-1B workers with frequent worksite changes. The AAO provided clarification on when an “amended” H-1B petition must be filed in a decision that will significantly impact the compliance burden for many H-1B employers.Background Consulting businesses are heavy users of the H-1B visa, and their business model often involves the short-term placement of workers on a temporary basis at a third party location.

However, prior USCIS informal opinion letter or guidance provided little guidance on the types of changes that would constitute a material change. In the event of a change of employment location, an informal USCIS opinion letter issued in 2003 in response to a letter seeking clarification stated that if the worksite was changed to a new location not covered in the original H-1B I-129 but is covered by a certified LCA which was in place prior to the employee’s move to the new location, an amended H-1B is not required “as long as the Labor Certification Application (LCA) has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligation are met.”On April 9, 2015, the Administrative Appeals Office (AAO) published a precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), stating the rule requiring an H-1B employer to file an amended H-1B petition if there is a change in worksite not covered in the original LCA. AAO’s decision held that a change in the beneficiary’s authorized place of employment to a geographical area not covered in the original LCA is a “material change” and the petitioner was required to “immediately notify USCIS and file an amended or new H−1B petition, along with a corresponding LCA certified by DOL.”It is not yet clear if this holding will be applied retroactively to changes in worksites that took place prior to AAO’s decision. Although retroactivity, if found applicable, may be challenged procedurally under Administrative Procedure Act (“APA”), a more specific USCIS guidance is much needed on the definition of “a material change” and the effective date for the AAO decision .