‘USCIS working as a business, taking H-1B employers for granted’

Ritu Jha-

ITServe Alliance, a trade coalition of information technology services companies in the U.S. comprising mainly Indian members, has said it will fight back after losing a case against the Department of Homeland Security (DHS) requirement that employers file amended H-1B petitions with a fresh fee every time an employee moves to a new geographical location. The DHS also requires the employer to obtain a fresh Labor Condition Application (LCA) to be certified by the U.S. Citizenship and Immigration Services (USCIS).

USCIS is an agency of the DHS that administers the country’s naturalization and immigration system.

A former president of the alliance told indica on the phone that until 2015 (when the Simeio Solutions LLC case was adjudicated) there was no such regulation. That change was made by the USCIS and upheld by the agency’s administrative appeals office (AAO).

Under U.S. federal law, an employer must file a new or amended H-1B visa petition on behalf of an employee working on an H-1B visa whenever that employee experiences a “material change” in employment.

In the Simeio Solutions LLC case, the AAO of the USCIS changed the meaning of “material change” to include change in work location. Prior to 2015, a change of location within the U.S. was not considered material. So an employer did not have to file an amended H-1B visa petition when moving a foreign employee from one domestic location to another.

In 2020, five years after the AAO ruling, ITServe Alliance petitioned the DHS that the USCIS lacked the authority to regulate the employment conditions of H-1B workers because the Secretary of Homeland Security had never designated Simeio as a precedential decision. Besides, it argued, Simeio was a procedurally defective legislative rule, so the USCIS could not issue binding interpretative rules under it.

But Judge Trevor N McFadden dismissed the arguments saying the USCIS could indeed issue binding interpretations.

“We are still going to fight for it,” the former president, who asked not to be named because the matter is still under discussion, said. The matter is now likely to move to the appellate court.

Asked why it took ITServe five years to challenge the DHS, the former president said, “If you see the history, we fought some other cases in 2018 and the judgment came in 2020. We were skeptical about fighting against the USCIS, fearing (they can come after you), but when our attorney and adviser said this is an injustice, we decided to challenge the 2015 Simeio Solutions decision.”

The former president said Simeio Solutions is not part of ITServe Alliance but the coalition decided to contest the order anyway because it sets a significant precedent in the H-1B context.

The decision outlines strict requirements to notify the USCIS about a change in the place of a beneficiary’s employment and for filing a new or amended H-1B petition corresponding with a certified LCA.

ITServe began in 2010 as a coalition of employees, but now it also has 1,300 companies, “so we are slowly growing stronger and that is the reason we have challenged the decision,” the ex-president said.

Asked what the objection to filing an amended H-1B petition is, the former president said the new requirement would force companies to spend more every time an employee’s location was changed.

“Not only the USCIS fee, but also the attorney fees have to be paid,” he pointed out. “And at one point (during Donald Trump’s presidency) they were denying so many H-1B petitions, we had to convert every case into a premium case, which means more money.

“The USCIS is now functioning as an enterprise,” the former president complained. “If you look at the premium H-1B visa fees, they keep going up. In 2018 it was $1,225, now they have doubled it to $2,500. They are taking us for granted.”

He said ITServe has over 100,000 employees but the member companies also hire green card holders and US citizens. “Because of the cases we won in 2020, a lot of overhead work has reduced, but we have to get rid of this also,” he said.

While the coalition was “shocked” at not getting an order from the judge in its favor, its attorney said the ruling was on expected lines.

The ex-president said ITServe also creates jobs within the U.S. and does not send local jobs offshore.