UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ITSERVE ALLIANCE, INC., Plaintiff, v. Case No. 1:20-cv-03855 (TNM) DEPARTMENT OF HOMELAND SECURITY, Defendant. MEMORANDUM OPINION 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 is a trade association that represents information technology companies whose employees provide services at client sites. Employees of ITServe’s members often change location. Simeio requires those members to file amended H-1B petitions—and pay filing fees—each time a foreign employee moves to a new geographic area. ITServe argues (1) that USCIS lacks the authority to regulate the employment conditions of H-1B workers; (2) that the Secretary of the Department of Homeland Security (DHS) never designated Simeio as a precedential decision; (3) that Simeio is a procedurally defective legislative rule; and (4) that USCIS cannot issue binding interpretive rules. In a cross-motion for summary judgment, DHS—USCIS’s parent agency—contests each of these arguments and contends ITServe lacks standing. The Court finds ITServe has standing because Simeio’s ruling harms its members. The Court rejects ITServe’s first argument because USCIS is not regulating workers’ employment conditions. ITServe’s second argument is unpersuasive because the Secretary’s delegate designated Simeio as precedential. Simeio was an adjudication, not a legislative rule, so ITServe’s third argument fails. And ITServe’s fourth argument is unconvincing because USCIS can issue binding interpretive rules. For these reasons, the Court will deny ITServe’s motion for summary judgment and will largely grant DHS’s cross-motion. I. Some background on the H-1B visa petition process illuminates the parties’ arguments. Obtaining one of these visas is a two-step procedure. First, an employer, or “petitioner,” must obtain a Labor Condition Application (LCA) from the U.S. Department of Labor (Labor). See 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n)(1); 8 C.F.R. § 214.2(h)(4)(i)(B)(1). The LCA must show the employee’s occupational classification, the wage the employee will receive, and the place the employee will work. See 8 U.S.C. § 1182(n)(1); 20 C.F.R. § 655.731(c)(4). The LCA also must show that the petitioner will pay the employee the higher of the actual or prevailing wage level for similarly situated employees in that location. See 8 U.S.C. § 1182(n)(1)(A); 20 C.F.R. § 655.731(a). Labor reviews LCAs only for completeness and accuracy. See 8 U.S.C. 2 § 1182(n)(1)(G). But Labor may investigate an H-1B petitioner if it receives a complaint or believes the petitioner is not complying with …
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