Visa Lawyer Blog
A new decision issued by a federal judge in the case Itserve Alliance Inc., et al., v. L. Francis Cissna, will dramatically change the way that the United States Citizenship and Immigration Services (USCIS) adjudicates H-1B petitions for Information Technology companies.
The new ruling invalidates key provisions of the CIS 2010 Guidance Memorandum (also known as the Neufeld Memo) and the CIS 2018 Policy Memorandum (PM-602-0157) for two reasons.
Firstly, the court found that the policies outlined in these memorandums were inconsistent with previous regulations that were lawfully passed by the government through the formal notice-and-comment rule-making process, as required by law.
Secondly, the court found that USCIS violated the law when it abandoned previous regulations and began applying their own policies without first going through the required formal notice-and-rulemaking process. Since these policies were not passed through the formal rule-making process, their application was found to be unlawful and unenforceable.
Background
During the start of the Trump administration, USCIS began adopting a narrow policy designed to limit the number of H-1B petitions that would be approved. Throughout this period, our office saw the highest number of requests for evidence and denial rates ever experienced in over a decade in practice. Other immigration attorneys across the country observed the same trends.
In particular, USCIS was increasingly denying petitions filed on behalf of information technology workers, certain business positions, and accounting positions.
In response to these actions, Itserve Alliance—an American employer providing information technology services—brought a lawsuit against USCIS arguing that the agency had violated the law by withdrawing INS era policies and replacing them with their own guidance, applying new versions of the employer-employee requirements to IT consulting firms, without engaging in rule-making.
According to the Court, in 2003 USCIS initially adopted and followed pre-existing and long-standing INS guidance memos and regulations, but more recently—during the Trump administration—superseded INS guidance with its own guidance memos without issuing regulations through the rule-making process.
USCIS has long argued that its guidance memos and practices are consistent with INS laws and regulations governing the H-1B visa worker program.
However, the federal judge strongly disagreed pointing out in the opinion that, “CIS has selected H-1B visa petitions from IT consulting businesses…for special treatment with the effect of dramatically slowing the processing of such visa petitions and reducing the accessibility by U.S. employers to such workers.”
The court asked, “The question is whether, in so doing, CIS actions were consistent with law and/or required formal rule-making. The Court finds that CIS has exceeded the law and was required to engage in formal rule-making. The CIS 2018 Policy Memo is, therefore, invalid, as are the new CIS interpretation and requirements concerning itineraries. Accordingly, the Court also finds that CIS cannot enforce the CIS 2010 Guidance Memo against Plaintiffs.”
As a result, the court found that USCIS does not have the authority “to deny visas to companies that place employees at third-party locations either because the third-party is determined to be the employer or because specific and detailed job duties are not provided with the visa application.”
Three Challenges to Current Policy
In this lawsuit, Itserve Alliance specifically challenged CIS’s current interpretation and application of three different criteria currently required to receive an H-1B visa: (1) the revised employer-employee relationship requirement—in particular CIS’s current definition of employer (2) the new non-speculative work requirement—requirement to show non-speculative work assignments for the entire length of the requested visa, and (3) the newly interpreted itinerary requirement—requiring that petitions include a detailed itinerary.
The Court found in favor of Itserve Alliance on all three points.
Employer-Employee Relationship
As to the first issue, the court found that the limited meaning of “employer-employee relationship” as announced and implemented by the CIS 2018 Policy Memo is inconsistent with longstanding INS 1991 Regulation, because it required formal rule-making and cannot be upheld.
The court thus stated, “The combination of the CIS 2018 Policy Memo and the CIS 2010 Guidance Memo—to which the former gave strict and required reading—destroys any discretion left to CIS adjudicators and renders the 2010 Guidance Memo similarly invalid as applied to Plaintiffs.”
As a result, USCIS is bound to apply the meaning of “employer-employee” relationship as defined in the INS 1991 regulation and cannot add standards to evaluate an employer-employee relationship and deny visa petitions for failure to demonstrate an adequate employee relationship based on these additional standards.
In evaluating the employer-employee relationship, the court stated, “CIS drilled down and now requires the assignment of day-to-day tasks to show the requisite control of an employer-employee relationship. This new interpretation was an erroneous effort to substitute the agency’s understanding of common law for the unambiguous text of the INS 1991 Regulation and is inconsistent with it. The Court finds that CIS has improperly avoided the rule-making process and, therefore, may not read any single criterion in § 214.2(h)(4)(ii) as mandatory to demonstrate an employer-employee relationship but must consider each sufficient to establish the relationship, including, but not limited to, “otherwise” showing control.”
Proof of Non-Speculative Work Assignments
As to the second issue concerning USCIS’s current requirement that a petitioning employer provide proof of non-speculative work assignments for the entire time of an H-1B visa (usually three years) at the time the petition is submitted, the court found that this practice is inconsistent with INS 1991 regulation and cannot be enforced.
USCIS therefore does not have the authority to deny H-1B visa petitions for failure to demonstrate that the H-1B worker would be employed in a specialty occupation because the petition did not include evidence of non-speculative work assignments for the entire duration of the visa.
The judge observed, “very few, if any, U.S. employer would be able to identify and prove daily assignments for the future three years for professionals in specialty occupations. What the law requires, and employers can demonstrate, is the nature of the specialty occupation and the individual qualifications of foreign workers,” as required by the INS 1991 regulation.
Itinerary Requirement
Finally, as to the new USCIS requirement of three years’ worth of non-speculative work assignments for the duration of the requested visa, the court found this requirement to be inconsistent with INS 1991 Regulation and therefore invalid.
The court stated that, “while the INS 1991 Regulation seeks “dates and locations” of the services to be provided, 8 C.F.R. § 214.2(h)(2)(i)(B), it does not require work assignments or the identity of those making daily assignments,” and further no such detailed itinerary requirement exists in the INS 1991 Regulation.
As to this new requirement, the judge found that, “Without rule-making, CIS requires new details in an itinerary that are inconsistent with a professional “specialty occupation” as previously enforced for decades and inconsistent with the regulation.”
The Court concluded, “as applied to these Plaintiffs in the IT consulting sector, it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS, requiring contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates the legislative nature of the CIS interpretation of the Regulation because it would effectively destroy a long-standing business resource without congressional action.”
As a result, USCIS does not have the authority to deny or partially deny, H-1B visas because the accompanying itinerary does not include descriptions of non-speculative work assignments for the duration of the requested visa.
Result
This new ruling strikes a devastating blow to the USCIS administration by preventing the agency from enforcing both the 2010 and 2018 memorandums for failure to abide by the required rule-making process and for its erroneous interpretation of binding INS 1991 policy guidance.
To read the decision in its entirely please click here.