District Court Upholds USCIS Rule Requiring Amended H-1B Petitions for Changes in Domestic Location

A U.S. district court has upheld the requirement that sponsoring employers file an amended H-1B petition for their foreign national employees every time one chooses to move to another domestic location. The plaintiff has announced that they intend to appeal this decision.

United States Citizenship and Immigration Services (USCIS) issued a memorandum in mid-2015 which announced that the movement of a foreign national employee from one place of domicile to another constituted a “material change,” thus requiring their employer to file an amended H-1B visa petition. This memorandum was issued in response to a decision by the Administrative Appeals Office on a particular case. However, this USCIS memorandum was issued without advance notice posted in the Federal Register and the public comment period during which stakeholders could provide input on the rule.

In order for an employer to file an amended petition, they must draft new paperwork, which can be a burden in itself and pay a $460 filing fee and $1,400 to expedite the decision. This can be inconvenient for any employer of an H-1B worker, but this can become a significant business expense for certain companies as the fees pile on.

The plaintiff in this recent case is an association representing information technology services providers. Many of these companies place their H-1B employees at client sites resulting in frequent location changes for these workers. As a result, these companies face a far higher burden by employing H-1B workers in these positions as the fees continuously add up.

The plaintiff alleged that the USCIS exceeded its statutory authority in issuing this rule, and thus it must be removed. However, the district court rejected these arguments noting that the USCIS is within its authority to issue binding interpretive rules. Now though, the plaintiffs have stated an appeals court will decide the issue.

According to the attorney representing the plaintiffs, the outlook is still looking strong, and he is confident that they have a very strong argument. He stated that this includes some structural issues that will greatly impact the Immigration and Nationality Act’s H-1B visa program. Further, the attorney noted that the appeals court does not need to abide by the district court’s decision. Because the lower court ignored the case’s key issues, the appeals court will leave considerable leeway in coming to its own conclusions.

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