H1B NEWS: Update on Amended H1B Petitions:

In ITService Alliance, Inc. vs. United States Department of Homeland Security, the US District Court for the District of Columbia held that a change in work locations to a new Metropolitan Statistical Area is considered a material change requiring the filing of an amended H1B petition.

ITService Alliance, Inc. (“ITServe”) is a trade association representing companies that provide information-technology services to clients. In this lawsuit, ITServe sought a declaratory judgment that US Citizenship & Immigration Service’s (“USCIS”) rule requiring amended H1B petitions when changing worksites was a procedurally defective rulemaking and that USCIS lacks statutory authority to require updated petitions whenever a sponsoring employer moves an H1B worker to a different worksite.

The Court noted that to qualify an employee for H1B status, the prospective employer must file an Labor Condition Application (“LCA”) with the Department of Labor. In the LCA, the employer must make various promises, including one to pay the employee at least the prevailing wage in the local geographic area. The reasoning was that because employers must pay H1B workers at least the prevailing wage for similar employees “in the area of employment,” a geographic move could affect eligibility for H1B status, and so the move was a “material” change in the terms of employment.

The Court held that because USCIS may consider LCA-related issues in exercising its own authority to approve, disapprove, or revoke H1B petitions, it may require new or amended petitions corresponding to changes in the place of employment that necessitate the filing of new LCAs.