DOS Guidance for Consular Officials on New or Amended H1B Petitions and Worksite Change (Under Matter of Simeio Solutions)
Introduction
On November 30, 2015, the U.S. Department of State (DOS) issued Cable 15 STATE 13442, titled “New Guidance on H-1B Adjudications Involving Changes in Place of Employment” [PDF version]. The DOS Cable provides guidance to DOS officers on the interpretation of United States Citizenship and Immigration Services (USCIS) Policy Memorandum (PM)-602-0120 (Jul. 21, 2015) [PDF version], which provided guidance on implementing the precedential decision of the Administrative Appeals Office (AAO) in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) [PDF version]. The decision clarified that where an H1B employer moves an H1B employee to a new worksite in a location requiring the certification of a new Labor Condition Application (LCA), the employer must file a new or amended H1B petition with the USCIS.
In this article, we will focus on the guidance in the DOS Cable for consular officers. While much of the Cable is dedicated to summarizing the USCIS Memo for the benefit of consular officers, we will generally skip over those portions of the Cable and instead direct readers to our comprehensive discussion of the Memo [see article] and the AAO decision [see article] for background on the issue. This article will focus specifically on guidance for DOS officers.
We have collected all of our articles on Matter of Simeio Solutions, LLC, and related issues in an article index [see index].
Role of Consular Officers
DOS Consular officers issue visas abroad. If an H1B employee takes a trip abroad and then needs a visa to return to the United States, he or she must obtain a visa at a U.S. Embassy or Consulate. If he or she applies for a visa, the DOS will assess whether he or she is eligible for the visa. It is worth noting that in the specific situation at issue in Matter of Simeio Solutions, LLC, the DOS unearthed concerns about the eligibility of an H1B employee and then forwarded those concerns to the USCIS, which ultimately concluded that the employee was no longer eligible for H1B classification.
The Cable on Consular Officer Responsibilities
The Cable began by explain that consular officers in visa adjudication cases are required “to carry out the requirements of U.S. immigration law.”
It stated that consular officers “are not expected to verify the LCA or place of employment for all LCA adjudications.” (Emphasis added.) Instead, if a consular officer finds that the H1B visa applicant's place of employment is different than the place of employment indicated in the original H1B petition and the associated LCA, “the adjudicator should verify the petitioner has taken the appropriate steps” under Simeio “or give [the petitioner] the opportunity to do so.” It added that “an additional line of inquiry may be necessary to determine the actual place of employment” in cases where the H1B beneficiary presents a cover letter from the petitioner indicating that his or her place of employment has changed.
In cases where the Simeio-affected worksite move occurred on or after August 19, 2015, the petitioner is always required to file a new or amended petition before the H1B employee begins work at the new place of employment. Accordingly, the petitioner is required to provide the DOS with a copy of a USCIS notice of receipt showing that it filed a new or amended H1B petition with the USCIS. If the petitioner provides this receipt, consular officers are instructed that “[t]he case should be processed to conclusion based on the receipt notice, even if the amended or new petition has not yet been approved.” (Emphasis added.) If the petitioner does not provide a receipt notice, consular officers are instructed to refuse the visa application under section 221(g) of the Immigration and Nationality Act (INA) until the requisite receipt notice is provided.
The Cable also provided guidance on older worksite move cases that occurred either before Simeio was published or between the publication of Simeio and the USCIS's implementing Memo. For worksite moves that occurred on or before April 9, 2015, the Cable noted that petitioners were permitted to file new petitions by January 15, 2016. However, in light of the fact that USCIS stated it would generally not pursue adverse actions based on non-compliance with the Simeio rule for worksite moves on or before April 9, 2015, the Cable stated that “[c]onsular officers should not require petitioners to file amended or new petitions in these cases…” In cases where the worksite move occurred after April 9, 2015, but before August 19, 2015, petitioners were required to file new or amended H1B petitions before January 15, 2016. Thus, in these cases, consular officers were instructed to adjudicate them to conclusion of the requisite petition was filed before January 15, 2016, but to issue visa refusals under section 221(g) if the petitioner does not provide a receipt notice showing that a new petition was filed.
Conclusion
If the H1B employee travels while a new or amended H1B petition is pending, it will be important for the petitioner to submit a receipt notice to the consular officer showing that the new or amended petition has been filed. If the petitioner fails to do so, the H1B employee's visa application will be refused. If the petitioner fails to comply with Simeio and the beneficiary then seeks a visa, the DOS may refer the case to USCIS for further investigation. The proceedings in Matter of Simeio Solutions, LLC, itself were commenced by a DOS referral to USCIS.
It is important for petitioners to ensure that they file a new or amended H1B petition in the event that there is a material change to the terms and conditions of an H1B employee's employment, including the specific situation covered by Simeio and the implementing USCIS Memo. When in doubt, a petitioner should consult with an experienced immigration attorney for case-specific guidance. An H1B employee may seek guidance on the evidence that he or she will need to submit to consular officers when seeking an H1B visa to return to the United States with a new or amended H1B petition pending.
To learn more about H1B visas and other employment-based nonimmigrant visas, please see our full category of articles [see category]. We cover Matter of Simeio Solutions, LLC, and related issues, in a full index on the subject [see index]. Finally, to learn more about issues relating to consular processing, please see our growing selection of articles on site [see category].