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 learnt that the plaintiff, ITServe Alliance, is likely to file an appeal with a higher court (Circuit Court of Appeals).
In July 2015, USCIS had issued a policy memorandum, based on the decision taken by the Administrative Appeals Office in a particular case. The memorandum prescribed that the movement of a foreign employee from one domestic location to another constituted a ‘material change’ and it required filing of an amended H-1B visa application. This requirement was imposed without advance notice in the Federal Register, which gives an opportunity for stakeholders to comment.
ITServe Alliance, an association of over 1,400 member companies (many of them founded by those of Indian origin) in its lawsuit stated 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 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.
Judge Trevor N. McFadden rejected the grounds of argument put forth by ITServe. The judge also held that USCIS can issue binding interpretive rules. Now the matter will move to the appeals court.
Jonathan Wasden, partner at Wasden Banias, who is representing the plaintiffs was optimistic that they have very solid arguments. He told TOI, “This case challenges some structural issues that will really shake up the entire Immigration and Nationality Act’s H-1B program. The appeals court is not 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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