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May 12 — It has been a little more than a year since an administrative immigration decision changed the landscape for companies that hire highly skilled foreign workers then transfer them to various U.S. locations.
In re Simeio Solutions, LLC , 26 I&N Dec. 542, 2015 BL 158157 (AAO 2015), a precedent decision from U.S. Citizenship and Immigration Services' Administrative Appeals Office, held that employers that move an H-1B highly skilled guestworker's employment location in most cases must file an amended petition with the USCIS.
Simeio caused an outcry among immigration practitioners and businesses, who had been relying on guidance in the form of a 2003 letter from USCIS Business and Trade Branch Director Efren Hernandez. That letter said an amended petition wasn't needed as long as the Labor Department certifies a new labor condition application, notice is posted in the new location and any new wage-and-hour obligations are met.
So how has the new rule played out?
For companies with a “highly mobile workforce,” the decision “has been a headache,” Fragomen, Del Rey, Bernsen & Loewy attorney Michael Boshnaick told Bloomberg BNA May 4.
“One of the biggest things is the cost” of filing multiple H-1B petition amendments, he said. Some companies move their workers “from engagement to engagement” fairly frequently, and “we're always playing this endless game of catch-up,” Boshnaick said.
USCIS filing fees can be pretty steep, especially for companies with multiple H-1B workers that have to file multiple H-1B amendments.
The H-1B filing fee alone is $325 per petition. But employers also need to pay a $500 fraud prevention and detection fee and a $1,500 American Competitiveness and Workforce Improvement Act fee. That doesn't count legal fees paid to immigration attorneys, which run about $1,500 on average, according to Boshnaick, who practices in Los Angeles.
And if an employer wants the USCIS to adjudicate its amendment quickly, it has to pay another $1,225 for premium processing, he added.
Those costs are likely to rise soon, as the USCIS May 3 unveiled a proposal to increase its fees, upping the cost of the I-129 petition for a nonimmigrant worker by 42 percent, from $325 to $460 (85 DLR A-3, 5/3/16).
And that doesn't even count the internal cost of ensuring that the employer keeps track of all H-1B workers' locations and files the amendments where appropriate.
“There's certainly been a significant reallocation of resources internally,” according to Peter T. Schiron Jr., assistant general counsel with Deloitte LLP in New York. “We're spending a lot to comply with Simeio,” and “it adds up quickly,”Schiron told Bloomberg BNA May 11.
One could say “that's just the cost of business,” but large companies with highly mobile workforces will be spending upward of tens of millions or hundreds of millions of dollars on compliance, he said.
“I don't think [the USCIS] understood the impact that this decision was going to have in terms of cost,” Elissa McGovern of the Citizenship and Immigration Services Ombudsman's Office said May 10. “It's still not something that was factored into their Paperwork Reduction Act filings,” she told Bloomberg BNA.
That law requires federal agencies to alert the public as to how much a submission to the government is going to cost, according to McGovern, chief of policy for the CIS Ombudsman's Office in Washington. That's not just filing fees but also the cost of compiling all the supporting documentation, she said.
The H-1B petition is “probably one of the most difficult forms for an employer to submit” to the USCIS because of its level of detail, the amount of documentation that must be submitted and the amount of documentation that must be maintained for each worker, McGovern said. Each amendment has to include all the same supporting documentation as the original petition, she said.
“It's another pain in the neck that employers have to put up with” in addition to dealing with the H-1B lottery, Howard S. Myers of Myers Thompson in Minneapolis told Bloomberg BNA May 4. There is already “a lot of anxiety and frustration” associated with vying for the 65,000 visas available per year—with an additional 20,000 for workers with advanced degrees.
In 2016, employers submitted 236,000 petitions for the visas, prompting the USCIS to conduct a lottery to select which petitions to process (71 DLR A-7, 4/13/16).
But Myers told Bloomberg BNA that the additional administrative burden and filing costs aren't the real problem.
Requiring an amended petition each time an H-1B worker changes job sites “basically allows the immigration service to revoke an approved petition,” resulting in the worker losing his or her immigration status, Myers said. That leaves the employer scrambling to find another visa category for the worker or considering employing him or her outside the U.S. instead.
Employers in that situation also may wind up having to fire the worker, who must return to his or her home country or else be subject to deportation.
USCIS officers are “sometimes left to their own devices” to determine whether an H-1B worker is located in a particular office—and that could be based solely on a “conversation with a receptionist” who may not know where the worker actually is located, Myers said.
Simeio“ratifies the agency's ability to kind of throw a wrench into an employment relationship,” and “that's too much of a consequence to have” for simply forgetting to file an amendment when a worker changes offices, he said.
Myers, a former president of the American Immigration Lawyers Association, worked with the organization on helping pass the Immigration Act of 1990, which created the labor condition application. The idea behind the LCA, Myers told Bloomberg BNA, was to ensure transparency in H-1B workers' pay and to force employers to go through the prevailing wage determination process, which involves surveying employers in the same geographic location to ensure that H-1B workers' pay is in line with industry standards.
Before Simeio, “things were just fine” if the employer got a new LCA from the Labor Department to ensure that the H-1B worker's pay is in line with prevailing wages in the new location, Myers said.
But Simeio allows the USCIS the “nuclear bomb option”: revoking an approved H-1B petition for failure to file an amendment after the worker moves, Myers said. That “just causes havoc,” he said.
“The thing that really scares me” is that an employer could fail to file an amended petition and the omission might not pop up until years later, when the employer filed another petition on the worker's behalf, such as an I-140 petition for an employment-based green card, Myers said.
The USCIS could send a request for evidence asking for a list of every location the employee had worked, and if a location was listed but an amended petition wasn't filed, the H-1B could be revoked. That would doom the I-140 petition because it would mean the employee worked without authorization, Myers said.
Schiron of Deloitte also questioned what would happen if the USCIS denies an amendment while others still are pending. Where is that H-1B worker supposed to go at that point? he asked.
“We're not seeing a sudden increase in the number of denials,” McGovern of the CIS Ombudsman's Office told Bloomberg BNA. “Keep in mind, however, we just went through cap season” and the USCIS is overloaded with original H-1B petitions subject to the annual cap, she said.
That means other types of petitions are falling by the wayside, McGovern said. As of Feb. 29, the USCIS's Vermont Service Center was still processing H-1B extension petitions—seeking to extend an H-1B worker's stay in the U.S.—that were filed July 20, 2015. The California Service Center was processing extensions filed Sept. 18, 2015, “not much better,” McGovern said.
It's not uncommon to have two or three pending H-1B amendments “that are just layered on top of each other” because the worker moves again before his or her H-1B amendment is adjudicated, Boshnaick of Fragomen added.
“We could be at the tip of the iceberg with respect to substantive issues” such as increases in denials, McGovern said. “We haven't seen the onslaught of adjudications of these amendments” because of the backlogs, so it “may be simply too soon to tell” how it will play out, she said.
But Schiron told Bloomberg BNA that Deloitte and other similarly situated companies are already getting a “significant number” of requests for evidence in response to Simeio-required H-1B amendments.
Those RFEs are seeking additional information that has nothing to do with the worker's location, even though that is the only thing that has changed since the original H-1B petition was approved, he said. The USCIS is questioning the H-1B worker's role within the organization, his or her educational credentials, the relationship with clients and whether the job is a “specialty occupation,” Schiron said.
“We're now basically starting from the beginning again,” and that creates a “level of uncertainty,”Schiron said.
McGovern said she's “cautiously optimistic” that the USCIS won't use Simeio as a way to yank the rug out from under H-1B workers and their employers.
“They have a policy of deference they are supposed to follow,” and as long as everything is the same about an H-1B petition except for the worker's location, it shouldn't be the basis for a revocation, she said.
The agency should have used the regular rulemaking procedure “to allow more robust notice and comment” by stakeholders, who would have alerted the USCIS to these issues, Schiron said.
“This goes above and beyond the intent of Simeio, which was to provide notice of a change of location,” he said. If there's a cost associated with that notice, “so be it,” but it shouldn't allow for a readjudication of the entire H-1B petition, Schiron said.
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