US Appeals court upholds filing of amended H-1B applications on change in work location


A US Court of Appeals (District of Columbia) has upheld the requirement that sponsoring employers must file an amended H-1B petition (application), with the US Citizenship and Immigration Services (USCIS), when the foreign employee moves from one domestic location to another.
ITServe Alliance, an association of over 1,000 member companies (many of them founded by those of Indian origin) had filed an appeal against an earlier lower court order, which had held that USCIS can issue binding interpretive rules.
TOI had covered this order in its edition of February 23, 2022.
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 a move 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. ITServe Alliance had challenged this in a district court, after an adverse order, it filed an appeal.
“The DC Circuit Court of Appeals left intact a 2015 policy of the USCIS that requires an employer of an H-1B worker to file an amendment each time the worker is assigned to a worksite outside the area of intended employment. If the employer is required to obtain a new Labor Condition Application to cover a new worksite, then the employer is also required to file an amended H-1B petition before moving the H-1B worker to the new worksite,” Cyrus D Mehta, a New York based immigration attorney told TOI.
Till the time of going to press, ITServe Alliance did not send its response to the court order.
Mehta added that, “This policy has increased the burdens and costs on employers relating to the filing of an amended H-1B petition, and it is unfortunate that the Appeals Court did not reverse the policy. If the amended H-1B petition is not filed prior to the move to the new worksite, the H-1B worker may be considered to be in violation of their visa status.”
“The USCIS has discretion to forgive status violations based on extraordinary circumstances beyond the control of the applicant. But, if the immigration agency denies an untimely request for an extension and amendment, the H-1B worker may have to return to India to apply for a new H-1B visa at a US Consulate,” explained Mehta.
It should be noted that the obligation to file an amended H-1B petition triggers when the worksite is outside the area of intended employment. When there is a change of location within a metropolitan statistical area such as New York City or within commuting distance from the original worksite, the employer will only need to post the notice internally at the new location.
The law firm of Jackson Lewis P.C. states that: The three-judge panel has further stated that the applicable regulation on ‘material change’ allows USCIS to ‘monitor changing facts’. 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, adds this law firm.
According to Mehta there has been an increase in such status violation findings after the advent of remote work owing to the Covid-pandemic, as the USCIS considers even the home as a worksite, and thus a move to another home, is subject to an H-1B amendment.

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