USCIS Neufeld Teleconference

The USCIS held a February 18 teleconference aimed at addressing the myriad of questions and rumors that have surfaced since the publication of the Neufeld Memorandum a few weeks ago. The Neufeld Memo purports to clarify USCIS policy on the legality of H-1B workers who are placed at third-party worksites. Several times on the call USCIS officials reiterated that the Memo is not new law, but merely an explanation of their current interpretation of law.

The attendees would have none of it. Dozens of immigration attorneys, including MU’s Chris Musillo spoke on the teleconference. A litany of criticisms was hurled at USCIS. Members of AILA and other industry trade groups also spoke up on the teleconference and condemned the Memo. The criticisms ranged from the surreptitious nature of the development of the Memorandum, to the absence of legal due process, to the unintended consequences in related areas of law, such as DOS immigration officials at airports misapplying this DHS Memorandum.

The loudest disapproval was directed at the underlying law supporting the Memorandum. MU contends – and many other immigration attorneys – that the Memorandum is simply not adequately grounded in law. For that reason many called on the USCIS to withdraw the Memorandum.

In the Memorandum, the USCIS found that existing law does not define “employer-employee” relationship. But this is wrong. Existing law does define an “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. The Neufeld Memorandum pays lip-service to these five factors and attempts to distinguish the “right to control” characteristic as a superior characteristic.

MU recently has had several H-1B's approved in spite of the Memorandum. That having been said, MU recently has seen a new “stock” RFE on a few of our client’s cases. At this point, it is unclear how USCIS officials will analyze H-1B third-party worksites in light of this new “stock” RFE and the Memorandum.

On the teleconference, USCIS announced that there would be a second teleconference. The date of the teleconference is not set at this time, but it is expected that the call will take place in early March.

Neufeld Memo: First H-1B Cases Approved

MU is pleased to report that it has received our first H-1B decisions under the Neufeld Memorandum. All of these first cases have been approved. Approvals have been received from both H-1B Service Centers. All of these H-1B cases were either filed or received RFEs after the January 8, 2010 publication of the Neufeld Memorandum.

In all instances, H-1B employers placed employees at third-party worksites. MU argued that the employer retained legal authority to hire, pay, fire, supervise or otherwise control. We used a variety of approaches in these first cases tailoring our approach to the facts at hand. We have received approvals for cases involving IT professionals and healthcare workers.

It is important to note that these approvals do not mean that the application of post-Neufeld Memorandum cases is settled. Under the Neufeld Memorandum, USCIS may seek additional evidence about the employer-employee relationship in instances where the employee works at a third-party site. USCIS may be delaying application of the Memorandum for some later point in time. Or, these first few cases may have simply not received stricter scrutiny. Nonetheless these first few cases indicate that H-1B cases can receive approval even if the employee is employed at a third-party worksite.

AILA Letter on H-1 Staffing Memo

AILA has sent a comprehensive letter to USCIS Chief Counsel Roxana Bacon arguing that the USCIS ought to set aside the January 8 Neufeld Memorandum Guidance that purports to limit approvals of H-1s in instances where the Beneficiary is employed at a third-party worksite. The letter, which reads like a legal brief, calls into question the core legality of the issuance of the Neufeld Memorandum, and challenges the reasoning throughout the Memorandum.

The letter’s key points are:

1. The issuance of the Neufeld Memorandum is a substantive change to existing law. Such changes to law by Memorandum are illegal under the Administrative Procedures Act. Under the APA, regulatory agencies like USCIS must first publish proposed rules in the Federal Register. Then, the agency must allow the public to comment on the changes. The USCIS must then consider and respond to the public comment.

2. The entire reasoning of the Neufeld Memorandum is unsound. In the Neufeld Memorandum, the USCIS found that existing law did not define “employer-employee” relationship. AILA contends, correctly MU thinks, that existing law does define “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Therefore the USCIS’ use of Supreme Court cases and common-law is improper since the definition is already right there in the definition.

3. To the extent that the USCIS applies the definition, it limits its focus to one of these five characteristics -- control – and fails to explore the other four characteristics – hire, pay, fire, and supervise.

4. Even if the USCIS feels that it needs help in defining “employer-employee,” the USCIS completely misapplies the relevant Supreme Court decisions. Cases such as Clackamas speak to the idea of balancing all characteristics and not limiting the analysis to the control characteristic.

5. When Congress last amended the relevant statutes in the law IMMACT90. It expressly sought to expand the definition of employer, not restrict it. USCIS is not legally allowed to violate Congress’ express intent.