What changed
In Matter of Simeio Solutions, LLC, 26 I. & N. Dec. 542 (AAO 2015) (decided April 9, 2015), USCIS’s Administrative Appeals Office held that a change in the place of employment of an H-1B beneficiary to a geographical area requiring a new Labor Condition Application (LCA) is a “material change” in the terms and conditions of employment, and therefore requires the employer to file an amended Form I-129 petition before the worker begins work at the new location.
USCIS adopted Simeio as binding policy in a July 21, 2015 final policy memorandum (PM-602-0120, “USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC”) and folded the rule into the USCIS Policy Manual, Volume 2, Part H. The regulatory hook is 8 CFR 214.2(h)(2)(i)(E), which has long required an amended petition whenever there are “any material changes” to the terms and conditions of employment described in the original petition.
Why it matters
Before Simeio, employers and counsel disagreed about whether a new worksite outside the metropolitan statistical area (MSA) — and therefore requiring a new LCA — was a “material change” requiring an amended I-129, or whether obtaining a new certified LCA and posting it at the new worksite was sufficient. Simeio settled the question: get a new LCA AND file the amended petition. Moving a worker without filing exposes the employer to a status violation for the worker and a worksite-rules violation for the employer.
For software, consulting, and life-sciences employers whose work crosses MSAs frequently, Simeio is the single most important compliance rule in the H-1B regime.
Way forward
1. Identify when an amendment is required. Under Simeio and the July 21, 2015 final guidance, an amended petition is required when:
- The H-1B worker’s place of employment moves to a worksite in a different MSA (or to a geographic area not previously listed on a certified LCA covering the worker).
- The new worksite is outside the “area of intended employment” defined at 20 CFR 655.715 (a normal commuting distance from the previously certified worksite).
The amended petition must be filed before the worker begins work at the new location.
2. Identify when an amendment is NOT required. USCIS’s July 21, 2015 guidance preserved three carve-outs:
- Moves within the same MSA or area of intended employment. No new LCA required, no amendment required. Best practice is still to post the original certified LCA at the new worksite under 20 CFR 655.734.
- Short-term placement under 20 CFR 655.735. An H-1B worker can be placed at a worksite outside the area(s) of intended employment on the existing LCA for up to 30 workdays per year (extendable to 60 workdays per year for workers whose principal place of employment remains the LCA-listed worksite), provided the employer pays per-diem and travel costs and continues to pay the LCA wage.
- Non-worksite locations. Travel for short-duration developmental activity (conferences, employee-development seminars, management meetings) is not a “worksite” for LCA purposes and does not trigger amendment.
3. File the amended I-129 before the move. The amended petition is the same Form I-129, marked as an amendment, with a new certified LCA covering the new worksite. The H-1B worker may begin work at the new location as soon as the amendment is filed and a USCIS receipt is in hand — provided the worker is in valid H-1B status when the petition is filed.
4. Mind the LCA wage at the new worksite. The new LCA must reflect the prevailing wage for the SOC code in the new MSA. If the new MSA’s prevailing wage is higher than the prior wage, the employer must pay the new prevailing wage starting from the first day of work at the new site. Simeio and the related LCA rules are interlocking — an amendment without a wage uplift, where the local prevailing wage requires one, creates back-wage liability.
5. Treat each remote-work transition as a worksite change. USCIS guidance on telework has evolved, but the rule has not. A move to a home worksite outside the MSA listed on the LCA is a worksite change for Simeio purposes and requires a new LCA plus an amended petition. Within the MSA, only the LCA posting requirement applies.
Risk if the rule is ignored
The worker can be found to have violated H-1B status by working at an unauthorized location. The employer can be found by DOL’s Wage and Hour Division to have failed the LCA wage and worksite requirements, and by USCIS to have failed the §214.2(h)(2)(i)(E) amendment rule — exposing the company to debarment, back wages, and complications on the worker’s future petitions.
Disclaimer
This article is general information from a software company, not legal advice from a law firm. Matter of Simeio Solutions, LLC compliance turns on MSA boundaries, the §655.735 short-term placement math, and the timing of new LCAs and amended I-129 filings — all of which can change between the time a remote-work plan is announced and the time the worker actually moves. Verify everything against the primary source — Matter of Simeio Solutions, LLC, 26 I. & N. Dec. 542 (AAO 2015), USCIS PM-602-0120 (July 21, 2015), 8 CFR 214.2(h)(2)(i)(E), and 20 CFR 655.715 / 655.734 / 655.735 — and engage qualified counsel before any worksite move.