Sun. Sep 25th, 2022

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US district court upholds requirement to file amended H-1B petitions on change of job location

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Amended H-1B Petitions: A US district court judge, based on past precedence, has upheld the requirement for sponsoring employers to file an amended H-1B visa petition (application) with the United States Citizenship and Immigration Services (USCIS). When a foreign employee moves from one domestic location to another. However, it is discovered that the plaintiff, ITServe Alliance, is probably going to file an appeal with a higher court (Circuit Court of Appeals).

In July 2015, USCIS had given a policy memorandum, based on the decision taken by the Administrative Appeals Office in a specific case. The memorandum prescribed the development of a foreign employee. From one domestic location to another constituted a ‘material change’ and required filing of an amended H-1B visa application. This requirement was imposed without advance notice in the Federal Register, which gives a chance for stakeholders to comment.

US court upholds requirement to file amended H-1B petitions

ITServe Alliance is an association of more than 1,400 member organizations (large numbers of them established by those of Indian origin). Also, its claim expressed that this requirement exceeded USCIS’s statutory authority and must be set aside.

Member companies of this association place their H-1B employees at client sites, thus there is a frequent change in location. Filing of an amended H-1B visa petition each time a foreign employee. It is moved to a new geographic region within the US adds up to the business costs. ITServe pointed out to the district court that the charges are right now $ 460 for filing and $ 1,400 for an expedited decision. These filing fees add to the costs of the sponsoring employers.

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Judge Trevor N. McFadden rejected the grounds of argument put forth by ITServe. The judge also held that USCIS can give binding interpretive rules. Presently the matter will move to the appeals court.

Jonathan Wasden, partner at Wasden Banias, who is addressing the plaintiffs was optimistic that they have very solid arguments. He told TOI, “This case challenges a few structural issues that will really shake up the whole Immigration and Nationality Act’s H-1B program. The appeals court isn’t bound by the lower court’s decision. 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.”

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