US Court of Appeals Upholds Requirement for Amended H-1B Petitions on Employee Location Change
– The US Court of Appeals (District of Columbia) has upheld the requirement for sponsoring employers to file an amended H-1B petition with the US Citizenship and Immigration Services (USCIS) when a foreign employee moves from one domestic location to another.
– ITServe Alliance, an association of over 1,000 member companies, had appealed against a lower court order that allowed USCIS to issue binding interpretive rules.
– In 2015, USCIS issued a policy memorandum stating that a move of a foreign employee to a different domestic location constitutes a ‘material change’ requiring the filing of an amended H-1B visa application.
– The DC Circuit Court of Appeals has left intact the 2015 policy, which requires employers to file an amended H-1B petition when an H-1B worker is assigned to a worksite outside the area of intended employment.
– Cyrus D Mehta, a New York-based immigration attorney, expressed disappointment with the court’s decision, stating that the policy has increased burdens and costs for employers.
– If an amended H-1B petition is not filed before moving to a new worksite, the H-1B worker may be considered in violation of their visa status.
– The USCIS has discretion to forgive status violations based on extraordinary circumstances, but if a request for an extension and amendment is denied, the H-1B worker may have to return to India to apply for a new H-1B visa.
– The obligation to file an amended H-1B petition applies when the worksite is outside the area of intended employment, but when there is a change of location within a metropolitan statistical area or within commuting distance, the employer only needs to post a notice internally at the new location.
– The law firm of Jackson Lewis P.C. states that the applicable regulation on ‘material change’ allows USCIS to monitor changing facts, terms, and conditions of employment.
– Employers should be aware that one approved H-1B petition may not cover the full approval period if an employee’s work location changes, and amended petitions may be necessary.
– Mehta noted an increase in status violation findings due to remote work during the COVID-19 pandemic, as even working from home is considered a worksite and requires an H-1B amendment.
In summary, the US Court of Appeals has upheld the requirement for sponsoring employers to file amended H-1B petitions when a foreign employee moves to a different domestic location. This policy has been criticized for increasing burdens and costs for employers. Failure to file an amended petition may result in a violation of the employee’s visa status.
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