Preliminary Injunction Filed to Challenge Neufeld Memorandum

By June 27, 2010Employer/Employee

On June 8, 2010, an application for preliminary injunction and complaint was filed by Greenberg Traurig LLP in the U.S. District Court for the District of Columbia which challenges USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships.

On June 8, 2010, in the lawsuit Broadgate et al versus United States Citizenship and Immigration Services, et al, the controversial Neufeld Memorandum of January 8, 2010 – which allegedly clarifies employer-employee relationships within H-1B visa applications in the interests of the United States Citizenship and Immigration Services (USCIS), but in practice has resulted in a preponderance of H-1B denials filed by Information Technology (IT) staffing firms – was challenged in the U.S. District Court for the District of Columbia.

Individual plaintiffs in the case – Broadgate Inc., Logic Planet Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association moved in a preliminary injunction to prevent the USCIS from implementing the policy announced in a January 8, 2010, memorandum issued by Donald Neufeld, Associate Director of USCIS. The memorandum declared that a third-party placement contractor is not a United States employer even though the company hires, pays, supervises, fires its employees, and shares control over them, and even though prior to the implementation of the policy initially announced in the memorandum, such an entity was deemed to be a United States employer. It was the preliminary injunction’s contention that this new policy is arbitrary and capricious, while it explicitly changes an existing regulation, limits USCIS’s discretion, and profoundly affects plaintiffs and others outside the government.

According to the injunction, the Neufeld Memorandum is at odds with the plain language of the relevant statute and its implementing regulations. For instance, The Neufeld Memorandum is premised on the assumption that an employee can have only one employer and that “the real employer” is the entity that exercises the greatest day-to-day control. It therefore proclaims that third-party placement contractors that have an overarching right to supervise their employees, that hire, fire and pay their employees and that share control of those employees nevertheless are not valid employers because they have “No Right to Control; No Exercise of Control.” This binding policy is inconsistent with the plain language of the INA which expressly includes contractors as United States employers.

In addition, the rule first introduced in the USCIS Memorandum singles out a particular type of business and, as applied, it precludes that type of business from operating.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at https://www.visatous.com.