We all knew that Citizenship and Immigration Service was acting in an arbitrary and capricious manner in adjudicating H-1B cases. What we needed was a case and a Judge to tell them so. IT Serve Alliance vs. Cissna (hereinafter IT Serve) is that case.
Before we get into the case, let’s get the politics out of the way. This problem with IT consulting companies was happening from 2010—with the Neufeld memo on control. This was in response to a huge number of fraudulent cases being filed by computer consulting companies. This case does not give IT Consulting Companies a carte blanche to file whatever they want. The employee still needs to qualify in a IT related specialty, although now, I do think that an Engineering Degree in certain specialties might qualify—-depending on the degree’s nexus to IT. I still don’t think, for instance, a degree in chemical engineering will suffice for just an IT consultant.
Procedurally, the case is a combination of 30 cases. We will not deal with other procedural matters discussed in this case since it has no bearing on Employers or Employees. This blog is written to help H-1B petitioners and beneficiaries.
This case came from the DC Circuit Court. Since Citizenship and Immigration Service is headquartered in DC, all offices of Citizenship and Immigration Service is bound by this decision. That stuff is for lawyers, and I can tell you its great for us. It takes away the way Citizenship and Immigration Service handled matters as a supreme dictator.
We do not require the utterly stupid control letters up the chain to the end client. The court upheld the 1991 regulation which states that the employer must show the
1. The ability to hire, OR
2. Ability to fire, OR
3. To pay, OR
4. To Supervise, Or
5. To Control.
The Court noted that OR does not mean AND. Therefore some document showing the ability to do any one of the following will suffice. For a new or transfer, I think just an offer letter and acceptance will be enough. So say Adios to the 2010 Nuefeld Control Memo.
The court held that Specialty occupation, as defined in 8 USC § 1184.1 is
Specialty Occupation is an OCCUPATION that requires theoretical and practical application of a highly specialized body of knowledge in the fields of human endeavor.
Therefore it is NOT the Job Description, not the JOB, but the OCCUPATION. The Court says, “Specialized Occupation would likely encompass a host of jobs, from trainee to expert, along with expert along with concomitant but different personal job duties.
As you know, there are four prongs for Specialty Occupation:
1. Baccalaureate of higher degree or its equivalent is normally the minimum requirement for entry into the particular position,
2. Requirement of such Degree is Common in the Industry
3. Employer Normally Requires a Bachelor’s Degree or equivalent in a related field OR
4. Job is Complex
This would take away the inane percentage of time that we would put into our job description.
The Court also did away with Defensor v. Meissner in a single footnote, (FN 13) so we would NOT require any bullshit from end client
An Itinerary is not required. The court basically told the Citizenship and Immigration Service to give the required three years. The court says that benching employees is OK, as long as the employer continues to pay for that employee.
H-1B regulations do not address furlough. Therefore one can argue that the State Employment Law controls.
WHAT IT SERVE DOES NOT ADDRESS:
1 IT Serve does not address “Material Change” for Amendment, so Simieo is still good law. One have to file an amendment, but in doing so, would require less burden of proof
2 IT Serve does not address why some SOC Codes are better than others—-ie why Systems Analyst is suddenly not a specialized SOC. However a lawsuit will be filed regarding this issue, so stay tuned for future development
We will change our petitions to reflect this case. The Citizenship and Immigration Service should have new memos after this case, but I doubt that will happen under this administration, or until Steven Miller loses control.