Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015): Worksite Changes and New/Amended H1B Petitions

 

Introduction: Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015)

On April 9, 2015, the decision of the Administrative Appeals Office (AAO) in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) [PDF version] was published for precedent. The decision dealt with changes in the place of employment for H1B workers. The AAO held first that when the place of employment of an H1B worker is changed to a geographical area requiring a corresponding Labor Condition Application (LCA), that is deemed a “material change” under regulations in 8 C.F.R. 214.2(h)(2)(i)(E) and (11)(i)(A). Second, the AAO held that, in such cases, the petitioner must file an amended H1B petition with the corresponding LCA.

In this article, we will examine the factual and procedural history of Matter of Simeio Solutions, LLC, and the AAO's reasoning and decision. In subsequent posts, we will examine United States Citizenship and Immigration Services (USCIS) guidance on implementing Matter of Simeio Solutions [see article] and a U.S. Department of State (DOS) cable that provides similar guidance to consular officers [see article]. To read all of our posts on Matter of Simeio Solutions and related issues, please see our index article [see article].

Factual and Procedural History of Matter of Simeio Solutions: 26 I&N Dec. at 542-44

The petitioner in the case filed a Form I-129, Petition for a Nonimmigrant Worker, to classify the beneficiary as an H1B nonimmigrant. On the Form I-129, the petitioner described itself as an enterprise that provides information technology services. The petitioner submitted a certified Labor Condition Application for Nonimmigrant Workers (ETA Form 9035/9035E) in support of the Form I-129. The beneficiary was employed by the petitioner at the time the Form I-129 was followed as an F1 student engaged in post-degree optional practical training.

The Form I-129, LCA, and letter of support submitted by the petitioner stated that the beneficiary would be employed to serve on an in-house project at the petitioner's facility with an annual salary of $50,232. The petitioner identified its business location at an address in the Los Angeles-Long Beach-Santa Ana, CA Metropolitan Statistical Area as the beneficiary's place of employment. The petitioner stated that the beneficiary would provide services for a specific client of the petitioner. However, the petitioner specified that the beneficiary “is and will continue to work from [its] Long Beach office.” Accordingly, the petitioner neither requested approval of other worksites nor submitted an itinerary, which would have been required under 8 C.F.R. 214.2(h)(2)(i)(B) if the petitioner sought to have the beneficiary perform services at more than one location.

The USCIS Director approved the H1B petition based upon the information submitted by the petitioner. The beneficiary began working for the petitioner in H1B classification.

The beneficiary departed the United States after working for the petitioner in H1B status for approximately two months.

The beneficiary then applied for an H1B visa at the U.S. Embassy in New Delhi, India, based upon the previously approved Form I-129. The beneficiary was interviewed by a consular officer as part of his visa application. After the interview, the consular officer requested additional documentation, “including a letter from the petitioner's client regarding the work to be performed by the beneficiary.” (Quoted from AAO decision.) The petitioner did not submit the evidence requested by the consular officer. Instead, the petitioner indicated that the beneficiary had provided services to other clients that were not named on the Form I-129.

In response to the petitioner's revelation, the U.S. Embassy in New Delhi returned the Form I-129 to the USCIS Director for review on the basis that the petitioner and beneficiary had presented information to the Embassy that had not been available to the USCIS at the time it had approved the petition. After the referral, the USCIS conducted a site visit to the Long Beach facility that the petitioner had specified would be the beneficiary's place of employment in the approved Form I-129 and supporting documentation. The USCIS was unable to locate the petitioner's office at that address, and discovered that the facility had been vacated two months after the start date of the beneficiary's H1B employment. The Form I-129 signatory informed the USCIS that the petitioner's company now used an employee's home as the company address. When the USCIS visited this new address it was informed that the petitioner employed 45-50 people and that the beneficiary was assigned to the petitioner's Los Angeles Office, a different location than what was indicated on the Form I-129. The USCIS also learned that employees assigned to the Los Angeles Office “either worked from home or from a client worksite.” (Quoted from AAO decision.)

Based on its worksite visit, the USCIS Director issued a notice of intent to revoke (NOIR) the approved Form I-129. The NOIR provided the petitioner with a detailed statement of the revocation ground and informed the petitioner of its opportunity to respond and provide a rebuttal, in accordance with the applicable regulations found at 8 C.F.R. 214.2(h)(11)(iii)(B).

The petitioner responded to the NOIR by confirming that the beneficiary was not working on the project or at the location specified in the original Form I-129. Instead, the petitioner stated that the beneficiary had done work for “various end users” both out of the petitioner's Long Beach office and from the petitioner's home office. The petitioner submitted a new LCA that listed two new worksites in two new metropolitan statistical areas (Oxnard-Thousand Oaks-Ventura Metropolitan Statistical Area and New York-Newark-Jersey City, NY-NJ-PA Metropolitan Statistical Area) as the beneficiary's places of employment.

Upon reviewing the petitioner's response to the NOID, the Director determined that the changes to the beneficiary's places of employment constituted a material change to the terms and conditions of employment that the petitioner had specified in the original Form I-129. Accordingly, the Director concluded that, under 8 C.F.R. 214.2(h)(2)(i)(E), the petitioner had been required to file a new Form I-129 corresponding to a new LCA that reflected the changes in the beneficiary's place of employment. Because the petitioner did not file an amended Form I-129, the Director revoked the original approved Form I-129 and certified the decision to the AAO for review.

AAO Discussion of the LCA and H1B Visa Petition Process: 27 I&N Dec. at 545-46

Before addressing the particulars of the instant case, the AAO discussed the LCA and H1B petitioning process generally. It began by excerpting the pertinent part of section 101(a)(15)(H)(i)(b) of the INA, which provides for the H1B classification:

Under section 212(n)(1)(A)(i) of the INA, an employer is required to pay an H1B worker the higher of:

The prevailing wage for the occupational classification in the 'area of employment'; or
The actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services.

The function of section 212(n)(1) is to “eliminat[e] economic incentives or advantages in hiring foreign workers.” The provision is implemented through the LCA certification process. The AAO explained that the LCA requires petitioners to describe, among other things, the following:

The number of workers sought;
The visa classification sought for these workers;
The job title(s) of the workers;
The occupational classification of the workers;
The prevailing wage;
The actual rate of pay for the workers; and
The place(s) of employment of the workers.

The statutes and regulations delegate responsibility for protecting American workers to the Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL). The LCA must be filed with the DOL and certified before an employer may file an H1B petition with the USCIS, which is a component of the DHS. In general, the DOL will certify LCAs provided that they are complete, accurate, and otherwise conform to the regulatory and form requirements. The USCIS then reviews the certified LCA to determine whether it corresponds with and supports the H1B petition. The applicable DOL regulation is found at 20 C.F.R. 655.700(b)(2) and the applicable USCIS regulation is found at 8 C.F.R.

214.2(h)(4)(i)(B)(1). The AAO explained that, under the same provisions, if an employer fails to submit the certified LCA to USCIS in support of either an amended or new H1B petition, the process is deemed to be incomplete.

Over the course of an alien's H1B employment, the terms or conditions of such employment may change from what was described on the approved H1B petition. However, under regulations found in 8 C.F.R. 214.2(h)(2)(i)(E), the petitioner is required to file an amended or new H1B petition along with a corresponding LCA when there is a material change to the conditions of the alien's employment or training or to the alien's eligibility for H1B classification. The AAO reproduced the regulatory text:

8 C.F.R. 214.2(h)(11)(i)(A) additionally requires petitioners to “immediately notify the [USCIS] of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility” for H1B classification.

AAO Clarifies that Change in Place of Employment to New Geographical Area is Material Change: 26 I&N Dec. at 547

The AAO explained that “[a] change of employment of a beneficiary to a geographical area requiring a corresponding LCA to be certified to DHS with respect to that beneficiary may affect eligibility for H1B status…” Accordingly, the AAO held that “it is therefore a material change for purposes of 8 C.F.R. 214.2(h)(2)(i)(E) and 11(i)(A).” For this reason, the AAO held that petitioners who change the employment of a beneficiary to a geographical area requiring a corresponding LCA to be certified to DHS with respect to that beneficiary must file an amended or new H1B petition with the corresponding LCA, in accord with 8 C.F.R. 214.2(h)(2)(i)(E).

In footnote 7 to the decision, the AAO stated that the foregoing interpretation of the regulations “clarifies, but does not depart from, the agency's past policy pronouncements…” For example, on August 22, 1996, an official of the then-Immigration and Naturalization Service (INS) published a memorandum wherein he stated that “[t]he mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition, provided the initial employer remains the alien's employer and, provided further, the supporting labor certification remains valid.” This guidance, reprinted in 73 Interpreter Releases No. 35 (Sep. 16, 1996), remains USCIS policy and is discussed further in a separate article on site [see article]. In short, the AAO stated that its decision is not to be construed as requiring amended petitions after immaterial changes to the alien's employment. Legacy INS recognized a similar rule to that articulated by the AAO in the instant case at 63 FR 30,419, 30,420 (Jun. 4, 1998) (Supplementary Information), wherein it stated that a proposed rule “would not relieve the petitioner of its responsibility to file an amended petition when required, for example, when the beneficiary's transfer to a new work site necessitates the filing of a new [LCA].

However, the AAO stated that, “[t]o the extent any previous agency statements may be construed as contrary to this decision, those statements are hereby superseded.” The AAO listed one specific example in “Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on Int'l Pers., Inc. (Oct. 23, 2003).

AAO's Analysis and Conclusions With Respect to Facts Presented in Matter of Simeio Solutions: 27 I&N Dec. at 547-49

In the instant case, the petitioner attested on both the Form I-129 petition for H1B classification and the associated certified LCA that the beneficiary's place employment was in Long Beach, California, which is part of the Los Angeles-Long Beach-Santa Ana, CA Metropolitan Statistical Area. However, the USCIS discovered in its site visit conducted after the beneficiary had been employed for two months in H1B status that the beneficiary's places of employment were in Camarillo, California, which is part of the Oxnard-Thousand Oaks-Ventura Metropolitan Statistical Area, and Hoboken, New Jersey, which is part of the New York-Newark-Jersey City, NY-NJ-PA Metropolitan Statistical Area. It is worth noting that the petitioner did not indicate that these were short-term placements or non-worksite locations.

As the AAO discussed, any change in the terms or conditions of the H1B beneficiary's employment that may affect the beneficiary's eligibility for H1B classification constitutes a “material change” under 8 C.F.R. 214.2(h)(2)(i)(E), which requires the petitioner to file an amended petition and notify the USCIS of the changes.

The AAO held that because section 212(n) of the INA ties the “prevailing wage” to the alien's specific “area of employment,” “a change in the beneficiary's place of employment to a geographical area not covered in the original LCA would be material for both the LCA and the Form I-129 petition…” (Emphasis added.) The AAO reached this conclusion after finding that such a change would potentially affect the alien's eligibility for H1B classification under section 101(a)(15)(H) of the INA.

The AAO explained its reasoning further. It stated that if the prevailing wage is higher at the alien's new place of employment than the place of employment indicated on the approved Form I-129 and associated LCA, “the beneficiary's eligibility for continued employment in H1B status will depend on whether his or her wage for the work performed at the new location will be sufficient.” The USCIS added that the LCA must specify the beneficiary's actual places of employment in order to (1) correspond to the H1B petition and (2) be effective. In footnote 9 of the decision, the AAO added that a change in the beneficiary's place of employment may materially affect eligibility for H1B classification in other ways as well. For example, petitioners are required to comply with DOL job posting requirements under 20 C.F.R. 655.734. Under 8 C.F.R. 214.2(h)(2)(i)(B), where the beneficiary will provide services at more than one location, the petitioner must submit an itinerary along with the Form I-129.

In the instant case, the LCA identified the petitioner's facility in Long Beach, California, as the beneficiary's only place of employment. Accordingly, it did not address the two facilities that the petitioner listed in response to the NOIR. Furthermore, the salary that the petitioner attested that it would pay the beneficiary on the Form I-129 was approximately $9,000 less than what would have been required to employ the beneficiary in Camarillo, California, and Hoboken, New Jersey, the two worksites submitted in response to the NOIR. The AAO held that this shortfall was contrary to sections 101(a)(15)(H)(i)(B) and 212(n)(1) of the INA, and thus materially affected the beneficiary's eligibility for H1B classification.

Because the AAO concluded that the petitioner had materially changed the beneficiary's authorized place of employment, it found that the petitioner had been required to immediately notify the USCIS and file an amended or new H1B petition accompanied by a certified LCA, in accord with 8 C.F.R. 214.2(h)(2)(i)(E) and (h)(11)(i)(A). Instead, the petitioner submitted a new LCA certified for the beneficiary's place of employment but it was not certified to the USCIS with respect to the beneficiary. The AAO held that “[b]y failing to file an amended petition with a new LCA, or by attempting to submit a preexisting LCA that has never been certified to USCIS with respect to a specific worker, a petitioner may impede efforts to verify wages and working conditions.”

Based on the foregoing, the AAO concluded that the petitioner failed to meet its burden for establishing the beneficiary's continued eligibility for H1B status. For this reason, the AAO affirmed the decision of the USCIS Director and revoked the approval of the Form I-129 in accordance with 8 C.F.R. 214.2(h)(11)(iii)(A)(1), (A)(3), and (A)(4).

Conclusion

Matter of Simeio Solutions is a significant precedent in the H1B context. The decision outlines strict requirements for notifying the USCIS about a change in the place of the beneficiary's employment and for filing a new or amended H1B petition that corresponds with a certified LCA.

The case also highlights the importance of consulting with an experienced immigration attorney in the case of uncertainty or ambiguity about whether a change in the conditions of H1B employment is material. By understanding the pertinent statutes, regulations, and guidance surrounding the H1B program, a petitioner may avoid making an error that leads to the revocation of an approved H1B petition.

To learn about how the USCIS actually applies Matter of Simeio Solutions, please see our full article on that subject [see article]. We are collecting our articles on this and related issues in an article index [see index]. We discuss the H1B classification and other nonimmigrant work visa categories in a growing section on site [see category].