U.S. Citizenship and Immigration Services (USCIS) may require employers to file amended H-1B visa petitions when relocating employees to new locations and did not fail to follow or otherwise circumvent rulemaking requirements in doing so, the U.S. Circuit Court for the District of Columbia has ruled. ITServe Alliance Inc. v. DHS, No. 22-5074 (June 27, 2023).
The H-1B nonimmigrant visa classification is for “specialty occupation” employees working under facts, terms, and conditions of employment, as certified by the U.S. Department of Labor and approved by USCIS. Just as in other employer-employee relationships, H-1B employers sometimes may need to change some fact, term, or condition of their H-1B employees’ previously approved employment. This may include a change in work location.
In 2015, in an administrative ruling in Matter of Simeio Solutions LLC, PM-602-0120, USCIS confirmed that changes in an H-1B worker’s employment location can be a “material change” requiring employers to file amended petitions. This ruling led to increased filing fees and paperwork for employers “materially changing” their employees’ work locations.
In December 2020, information technology industry group ITServe, which represents member companies that often have needs to change employees’ work locations, filed suit challenging Matter of Simeio Solutions LLC as “procedurally defective rulemaking.” In February 2022, the U.S. District Court for the District of Columbia ruled USCIS had not run...
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