On March 19, 2010, the American Immigration Lawyers Association (AILA) submitted a memo to U.S. Citizenship and Immigration Services (USCIS) leadership addressing issues raised by the January 8, 2010 policy memorandum titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” commonly known as the Neufeld H-1B Memo.
AILA’s response raises some very interesting points that seem to make clear that USCIS’s efforts with the Neufeld Memo may have been half-baked. Specifically, AILA notes that the Neufeld Memo is inconsistent with USCIS’s own regulations regarding the required H-1B Employer-Employee relationship, and that it inappropriately closes the H-1B classification to a host of legitimate employers. AILA’s memo also points out that the Neufeld Memo is at odds with congressional intent and that USCIS should have complied with the notice and comment provisions of the Administrative Procedure Act (APA) related to agency rulemaking before making such a significant change in policy. These are compelling arguments, and AILA has appropriately reiterated its request that USCIS withdraw the Neufeld Memo.
Interestingly, this is the second time that AILA has officially raised the APA issue with USCIS; these concerns were expressed in detail in a tour de force analysis of USCIS adjudications and Neufeld Memo provisions that involve H-1B “owner entrepreneurs.”
Since the new AILA memo references a “continuing dialogue” with USCIS on the Neufeld Memo, I would hope that the immigration agency is evaluating its stance, but am quite frankly surprised that it has not unilaterally withdrawn the Neufeld Memo as of yet. I wonder how long it will be until an affected plaintiff steps forward and asserts the APA argument in a lawsuit against USCIS?