Jan 8th H-1B Memo Revisited

After that devastating H-1B Neufield Memo of January 08, 2010, today the USCIS had a stakeholder’s meeting for comments on that memo. (For details on this memo, please see my Jan 21 blog). Effectively this memo paralyzed certain types of H-1B cases specially the IT Consulting Services and staffing agencies. The rationale behind the memo is that these parties do not have control over their employees, and thus are not employers in the H-1B context.

The justification cited by the USCIS was that they wanted to maintain consistency of adjudications between the different service centers. After being told though that they have opened a pandora’s box and their memo might be interpreted differently. The Service Center said that every denial will receive “supervisory review.” Lets hope that CIS “CONTROLS” these supervisors.

Congressman Morrison, who wrote the H-1B legislation specifically stated in the meeting that Congress did not intend to exclude staffing companies (and IT consulting Companies) from H-1B jobs and that this memo is wrong and will have devastating policy consequences.

Others including Crystal Williams of AILA pointed out that since both the Supreme Court cases (Darden-Clakcamas) were not on point, and this memo created new rules for employer-employee relationship that it amounted to impermissible rule making by a Governmental agency. By law, an Agency has to publish a rule and have a notice and comment period, and consider all comments before making a rule. Thus this memo should be withdrawn. Interestingly a caller even said that the Darden-Clakcamas cases refer to the EEOC manual, where the IT staffing Companies are used as examples of valid Employer-Employee relationship. Thus the CIS’ citations actually contradict their position. The caller asked whether anyone actulayy read the cases before citing them as authority.

Others made policy statements, like cutting down H-1B jobs will effectively outsource those jobs. Also prohibition of investors will hurt USA in these dire economic times.

Then there were some CIS supporters. There was a PhD from some anti immigration group who said he was a PhD in some type of radio Physics, was out of a job because employers want younger employees. Well, if H-1B was stopped, employers would still hire new grads, only they would be American grads, and those at the bottom of their classes who had no hope of getting another job. Look at the Nobel laureate list for 2010 for USA. All those medals would simply go to other countries.

The CIS did notice that there were numerous blogs criticizing their memo.

The question remains as to what it will take for USCIS to reverse its stance. It took the election of a Republican senator to change the health care debate. The CIS noted that even Capital Hill is commenting about their Jan 08 memo.

This memo according to them took years to make. Even then, the policy making personnel at CIS did not read the entire Supreme Court cases. To undo this memo may take the same time. Maybe their employer, Mr. Obama, should control them tightly against such arbitrary rule making.

Contact Houston Immigration Lawyer, Annie Banerjee for more details