On March 10, 2020, a federal court in Washington DC overturned the highly restrictive USCIS standards for the consulting industry. This decision has a significant positive impact on the IT industry.
Judge Rosemary M. Collyer was of the opinion that USCIS must not administer the judiciary through random memoranda and, if it wants to change the rules, must do so through a formal process. In fact, USCIS seems to have targeted the IT industry illegally (“special treatment”):
“Congress designed the H-IB visa in 1990 to allow fast processing and temporary placement of foreign workers in specialty jobs, as required by US employers. The CIS has selected H-1B visa applications from IT consultancies that hire foreign temporary workers, and most of them are contracted out to third parties for contracts of less than three years to provide special treatment that drastically slows down the processing of such visa applications US employers for such workers. These facts are not contested. The question is whether the CIS measures were compatible with the law and / or required formal regulation. The Court finds that the CIS has violated the law and has had to issue formal regulations. “
The court ruled:
The CIS 2018 Policy Memorandum (PM-602-0157) is invalid. This is the memo, titled “Contract and Itinerary Requirements for H-1B Petitions on Third-Party Sites”, asking employers to submit an itinerary for internships.
The infamous 2010 Neufeld memo, which created a new definition of the relationship between employer and employee, is invalid against the plaintiffs (in fact, anyone who complains about this requirement probably has priority). The regulations clearly state that the relationship between employer and employee can be demonstrated by many factors, including:
“… that the employer can” hire, pay, dismiss,
monitor the work of or otherwise control [the] Workers. “8 CFR § 214.2 (h) (4) (ii). Therefore, an employer-employee relationship is evidenced by an aspect of” control “that can be shown in various ways, be it the ability to hire, pay, to fire, monitor or control
in a different way. The use of “or” clearly informs regulated employers that a single factor listed can determine the “control” required to demonstrate an employer-employee relationship. This wording makes it clear that there are several ways to demonstrate employer control.
that is, to show control by hiring or paying or firing or monitoring or “otherwise”. In context, “otherwise” expects additional, no less examples of employer control.
In other words, employers should not be required to demonstrate their control. One or more of these factors are sufficient if the employer can: hire, pay, fire, monitor, or otherwise control the work of [the] Employee.
If the USCIS wishes to grant H-1B permits for periods of less than 3 years (or implicitly the periods requested by the petitioners), it MUST provide certain reasons for the shorter duration. The court found:
“The law stipulates that the applicant employer only employs those who are qualified in special occupations. Nothing in its definition requires specific and non-speculative qualifying daily tasks for the entire time requested in the petition. While an H-1B visa holder, who works in a single location in a specialized profession, is assumed by the CIS to receive qualified daily orders, the CIS requires the plaintiffs to provide evidence by overwhelming numbers of confirmed evidence that that the daily orders of your H-1B visa holder will be in their specialty. This requires a rational explanation: very few, if any, US employers could identify and demonstrate daily assignments to professionals in specialty jobs for the next three years. What the law requires and employers can demonstrate is the type of professional occupation and the individual qualification of foreign workers. “
There are indications in this decision that the Court is not buying the USCIS restrictive definition of “specialty”. USCIS is likely to lose many more cases on this matter.
Obviously, the USCIS had been running amok for too long and had to be governed by what the court did in this commendable decision.
A golden aspect of this case, other similar cases, and our own experience of litigation against the government is: DO NOT suffer injustice. Take them to court.
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