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 afoul of the Administrative Procedure Act’s notice and comment period in issuing its decision.
In ITServe Alliance Inc. v. DHS, the D.C. Circuit Court agreed, concluding that Matter of Simeio Solutions, LLC constitutes “an informal adjudication resting on USCIS’s interpretation of the material change regulation” and “functions like a judicial decision interpreting an agency regulation and then applying it to resolve a case or controversy.” The three-judge panel further stated the applicable regulation on “material change” allows USCIS to “monitor changing facts,” understanding that facts, terms, and conditions of employment, when modified, are subject to further review and adjudication by the agency.
The consequence for employers is that one approved H-1B petition is not necessarily sufficient to cover the full temporal period of approval if an employee’s work location changes within that time frame and amended petitions may be necessary when such material changes occur. While employers likely have been proceeding accordingly since Matter of Simeio Solutions, LLC, the D.C. Circuit’s ruling confirms the procedural soundness of USCIS’s requirements.
If you have questions as to whether an H-1B amended petition is necessary, please reach out to your Jackson Lewis attorney.