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Simeio Survives...For Now

February 20, 2022 (1 min read)

ITSERVE Alliance v. DHS

"Under federal law, an employer must file a new or amended H-1B visa petition on behalf of a U.S.-based foreign national employee whenever that employee experiences a “material change” in employment. In Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) altered USCIS’s interpretation of the phrase “material change.” Before Simeio, a change of location within the United States was not material. So an employer did not have to file an amended H-1B visa petition when it moved a foreign employee from one domestic location to another. That changed after Simeio, which defined a “material change” to include changes in work location. Plaintiff ITServe Alliance, Inc. challenges Simeio on summary judgment. ... ITServe’s arguments that Simeio executes an end-run around the APA are nonfrivolous. Simeio expanded USCIS’s already broad regulatory authority without the hassle of notice-and-comment rulemaking. Perhaps it would be better for USCIS to announce such an important change through a regulation. But as the APA binds agencies, so precedent binds this Court. And here precedent favors USCIS. The Court thus will deny ITServe’s motion for summary judgment and will grant DHS’s cross-motion for summary judgment except as to standing."

From Law360: "Jon Wasden, a Wasden Banias LLC attorney and counsel to ITServe, told Law360 that the decision "is not terribly important" because counsel knew the case was headed to the D.C. Circuit Court of Appeals "from the start." "The case raises some substantial issues about agency authority and the dividing lines between two agencies' jurisdiction in the H1B program," Wasden said in a statement on Friday. "Those structural issues make the case great vehicles for good positive law." "