‘Employers must file new H-1B petitions on change of location’

US federal judge rejects challenge to USCIS rule filed by ITServe association of over 1,400 IT companies

A US federal judge has upheld a USCIS ruling that sponsoring employers must file an amended H-1B visa petition when a foreign employee moves from one domestic location to another.

US district judge for the district of Columbia, Trevor N. McFadden Monday rejected a challenge by ITServe, an association of over 1,400 IT companies, many of them founded by Indian Americans.

IT serve, which had argued that the US Citizenship and Immigration Services (USCIS) had exceeded its statutory authority with this requirement, is expected to file an appeal with the Circuit Court of Appeals.

Read: All that you need to know about H-1B 2023 lottery (February 7, 2022)

Based on past precedent, the judge also held that USCIS can issue binding interpretive rules.

In recent years, Indian professionals have been getting about 70% of 85,000 H-1B issued by the US to high skilled foreign workers.

ITServe, whose members place their H-1B employees at different client sites, had argued filing of an amended H-1B visa petition each time a foreign employee is moved to a new geographic area within the US adds up to the business costs.

Read: USCIS opens H-1B registration for FY 2023 on March 1 (January 29, 2022)

ITServe pointed out to the district court that the fees are currently $460 for filing and $1,400 for an expedited decision. These filing fees add to the costs of the sponsoring employers.

The USCIS had In July, 2015 issued a policy memorandum saying movement of a foreign employee from one domestic location to another constituted a ‘material change’ and thus required filing of an amended H-1B visa application.

Read: USCIS H-1B Application Rule Withstands IT Group’s Challenge (February 18, 2022)

This requirement was imposed without advance notice in the Federal Register, which gives an opportunity for stakeholders to comment, the employers’ association had argued.

“This case challenges some structural issues that will really shake up the entire Immigration and Nationality Act’s H-1B program,” Jonathan Wasden, partner at Wasden Banias, who is representing the plaintiffs told the Times of India.

“The appeals court is not bound by the lower court’s decision,” he was quoted as saying. “Given the fact that the lower court danced around the key issues of the case without squarely addressing any of them, the appeals court really has a blank slate to draw on.”