On Tuesday, May 11, 2018, the USCIS published a memo that may change how unlawful presence is determined for foreign persons in the F, J, and M status. Scheduled to go into effect on August 9, the
A lawsuit filed on May 1 with the US District Court for the District of New Jersey challenged the H-1b visa Third-Party Worksite Policy Memo published by USCIS on February 22. This policy memo added requirements that employers, who assign H-1B workers to third-party client sites, had to satisfy. According to the lawsuit, Small & Medium Enter. Consortium, Inc. v. Nielsen, the policy memo is unlawful. The group of IT staffing firms (which include Small and Medium Enterprise Consortium, Inc., Nam Info, Inc., and Derex Technologies, Inc.) who filed this lawsuit is seeking for a temporary restraining order blocking the implementation of the policy memo.
According to the lawsuit, the USCIS has exceeded their authority and stepped on Labor Department’s authority by releasing and implementing the memo in question since the authority to define “employer” is held by the Labor Department as delegated by Congress. And according to Jonathan Wasden, one of the attorneys in the case, the Labor Department allows for staffing companies to work with employees on H-1b visas without added restrictions. In addition, both Labor Department regulations and the Immigration and Nationality Act permits an H-1b employee periods of “nonproductive status” where the worker does not have an assignment. Since the policy memo in question requires that workers have specific assignments throughout the validity period of the visa, it contradicts the Labor Department regulations and the Immigration and Nationality Act.
The lawsuit asserts that such rigid requirements hamper employers looking for third-party placement, and thus “excluded” these employers from the H-1b visa program. According to Wasden, petitioners wishing to extend the H-1b status of employees are receiving denials from the USCIS, as the petitioners are unable to provide required itineraries as demanded by the policy memo. As such, this policy memo threatens the staffing companies’ flexibility and competiveness by limiting their ability to move employees to different client sites, as noted by Wasden.
The policy memo being challenged by the lawsuit was published by USCIS in February and serves as a guide which instructs petitioners to provide detailed evidence showing that an employer-employee relationship is maintained when an employee with an H-1b visa works at a 3rd party site. In order to get an H-1b status approved, the employer has to provide a preponderance of evidence that indicates that the applicant will ensure that an employer-employee relationship exists with the H-1b beneficiary during the requested validity period. As stated by the policy memo, PM-602-0157, petitioners have to provide itineraries and contracts of employees at 3rd- party worksites.
The memo being challenged was released to clarify requirements pertaining to H-1b applications that deal with employees who work at 3rd party sites. In addition, the policy memo is supposed to read together with already existing requirements (such as the Employer-Employee Memo). The subject title of the policy memo being challenged is Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites. For better understanding schedule a consultation with us .
- Bloomberg LP. 2018. Added High-Skill Visa Requirements Illegal, Lawsuit Says. [ONLINE] Available at: https://news.bloomberglaw.com/daily-labor-report/added-high-skill-visa-requirements-illegal-lawsuit-says. [Accessed 11 May 2018].
- US Citizenship and Immigration Services. 2018. Policy Memorandum, SUBJECT: Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites. [ONLINE] Available at: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf. [Accessed 11 May 2018].
- US District Court for the District of New Jersey. Small & Medium Enter. Consortium, Inc. v. Nielsen. 1 May 2018. 2:18-Cv-08672.