Although in its prior draft guidance, USCIS said that Simeio would apply retroactively, the final guidance is more equivocal and sends a mixed signal. On the one hand, the final guidance states that the USCIS would “generally” not take adverse actions against employers that fail to file amended petitions based on moves that may have triggered a new LCA prior to April 9, 2015. On the other hand, the USCIS gives employers a “safe harbor period” in which they may choose to file amended H-1B petitions by January 15, 2016. With respect to moves that have taken place after April 9, 2015 but prior to August 19, 2015, amended H-1B petitions must be filed by the new deadline of January 15, 2016. Regarding any moves after August 19, 2015, the employer must file an amended or new H-1B petition before the H-1B employee starts working at the new place of employment not covered by an existing approved H-1B petition, and not subject to any of the above discussed exceptions to filing a new LCA.
While the USCIS has indicated that it will not generally take adverse action against employers for moves that did not result in the filing of an amended H-1B petition prior to April 9, 2015, employers should file amended petition out of an abundance of caution. If an employer chooses not to file, and take advantage of the safe harbor period until January 15, 2016 by filing before that deadline, it will be doing so at its own peril, and any adverse action taken, may result in a finding that the H-1B worker did not maintain status. The Department of Labor may also factor the failure to file an amended H-1B petition when penalizing an employer for violations under the LCA regulations at 20 CFR 655. Moreover, neither the Department of State or Customs and Border Protection may be bound by the USCIS final guidance regarding not taking adverse action against an employer.
If the adverse action is taken against the employer based on a retroactive application of Simeio, can the employer challenge it? Generally, the retroactive application of a rule created through agency adjudication is disfavored. In Velasquez-Garcia v. Holder, 760 F.3d 571 (7th Cir. 2014), the Seventh Circuit considered whether the “sought to acquire” standard for a child’s age to get protected under the Child Status Protection Act by the BIA in Matter of O. Vazquez could be applied retroactively. The Seventh Circuit in Velasquez-Garcia applied the following factors: (1) Whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
Under the criteria established in Velasquez-Garcia, it can certainly be said that Simeio is a case of first impression under the first consideration and that the retroactive application of Simeio would impose a great burden on an employer under the fourth consideration. What is less clear is whether Simeio represents an abrupt departure from well established past practice under the second consideration and whether there was a former rule that employers relied on. The Efren Hernandez letter of October 23, 2003, was hardly a rule as it did not constitute an agency decision or even a form instruction, and despite the existence of the Hernandez letter, there were many instances when DOS recommended revocation of an H-1B petition where the job location had changed, and the USCIS often went ahead and revoked such petitions. There were also other instances when the the USCIS after a site visit revoked H-1B petitions when the H-1B worker was no longer at the original location. T