Earlier this week, a federal court ruled that the US Citizenship and Immigration Service (USCIS) can require H-1B employers to file an amendment petition each time the H-1B worker changes their worksite outside of the Metropolitan Statistical Area (MSA) listed in the previous H-1B petition. The MSA is a geographic area normally covering the commuting distance around a particular city.  

A group of plaintiffs brought this challenge, claiming the amendment process is prohibitively expensive and burdensome to both employers and employees. The court found, however, that a change in worksite for H-1B workers is a material change and the agency needs to be notified of such changes to carry out its enforcement responsibilities.  As such, the agency’s decision to require H-1B amendment petitions was justified. 

This decision is unfortunate given the current reality of employment conditions.  The court fails to acknowledge the evolving work arrangements implemented largely to accommodate COVID-19, and which have continued into the post-pandemic world, where companies and employees settle into hybrid and remote work models.  The ruling also ignores the fact that companies are not the only ones driving work location changes; employees also choose to move locations despite not being asked by the employer to move, especially where their employer is 100% remote.  Employers and employees will need to continue to comply with the burdensome amendment process until the agency decides to implement new requirements that reflect the more flexible work arrangements in the post-pandemic world. 

The full ITServe Alliance, Inc. v. DHS opinion is available here. 

This alert is for informational purposes only.  Please contact us if you would like to discuss this development further.