New H-1B Petitions Need To Be Filed On Relocation

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 services, which had argued that the USCIS had exceeded its statutory authority with this requirement, is expected to file an appeal with the Circuit Court of Appeals.

The judge also held that USCIS can issue binding interpretive rules based on past precedent.

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

ITServe, whose members place their H-1B employees at different client sites, argued that filing 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.

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 the 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.

The employers' association argued that this requirement was imposed without advance notice in the Federal Register, which would have allowed stakeholders to comment.

“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 reputed media channel.