A federal judge recently upheld U.S. Citizenship and Immigration Services (USCIS) guidance that requires H-1B petitioners to file a new or amended petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition.

In the case, the plaintiff, ITServe Alliance, challenged guidance USCIS issued in 2015 following a USCIS Administrative Appeals Office decision in Matter of Simeio Solutions, LLC. ITServe argued that USCIS unlawfully sidestepped federal rulemaking procedures in adopting the guidance, but U.S. District Judge Trevor N. McFadden ruled in the government’s favor.

Key Points:

  • The Simeio guidance remains in effect.
  • ITServe is likely to appeal the ruling to the U.S. Court of Appeals for the District of Columbia Circuit.
  • The Department of Homeland Security (DHS) is crafting a proposed rule to “modernize” H-1B requirements that could affect the litigation.
  • According to DHS’ description, the proposed rule would include provisions that “clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

BAL Analysis: BAL will continue following the litigation over the Simeio guidance and the administration’s efforts to “modernize” the H-1B program through the regulatory process. BAL will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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