U.S. Citizenship and Immigration Services (USCIS) can require employers to file an amended H-1B petition for their workers who are moved to a new location. The D.C. Circuit court found USCIS is not in violation of any rulemaking requirements with this policy.
In a 2015 administrative rule, USCIS identified an update to an H-1B worker’s employment location as a “material change.” As such, employers are required to file an amended petition. ITServe Alliance, an industry group, argued that the policy requiring an amended filing violates rulemaking requirements. The D.C. Circuit Court found the refiling requirement an adjudication, with no violation. This ruling supports a 2022 decision from a U.S. District Judge who found no violation of the Administrative Procedure Act’s notice and comment requirements.
ITServe Alliance filed a lawsuit in late 2020, stating H-1B employees are regularly required to change locations. The amended petition requirement creates paperwork and additional filing fees every time an H-1B visa holder changes their work location. And without a notice and comment period, the requirement should not stand. The Circuit Court stated federal agencies are not barred from creating new requirements during adjudication. Further, the Circuit stated the material change regulation supports USCIS’ requirements to monitor changing facts and related enforcement responsibilities for H-1B holders.
If you have questions about an H-1B visa or any other immigration-related issue, contact us at ILBSG. We actively monitor ongoing policies and updates to ensure our clients get the right advice and remain in compliance.
