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Amended H-1Bs must for new job site
https://www.whatjobs.com/news/employment-news/amended-h-1bs-must-for-new-job-site
By Nagasunder in Employment News, posted July 7, 2023
A ruling by the US Court of Appeals for the District of Columbia has upheld the requirement for sponsoring employers to submit an amended H-1B petition to the US Citizenship and Immigration Services (USCIS) when their foreign employee transitions to a different domestic location.
The ITServe Alliance, an association representing more than 1,000 member companies, a significant number of which were founded by individuals of Indian origin, had appealed against a previous decision made by a lower court.
The lower court ruled that USCIS has the authority to issue binding interpretive rules.
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In July 2015, USCIS issued a policy memorandum based on a specific case decided by the Administrative Appeals Office.
This memorandum stated that the relocation of a foreign employee from one domestic location to another constituted a "material change" and necessitated the filing of an amended H-1B visa application.
The ITServe Alliance contested this policy in a district court and subsequently filed an appeal after receiving an unfavorable ruling.
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The court of appeals has upheld the 2015 policy, leaving it unchanged. At the time of this statement, the ITServe Alliance had not yet responded to the court's order.
Cyrus D Mehta, a New York-based immigration attorney, told TOI, "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, H-1B workers 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.
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It should be emphasized that the obligation to submit an amended H-1B petition arises when the new worksite is situated outside the intended employment area.
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