Yesterday, the DOL issued a new memo explaining that it will start requiring all secondary employers to file LCA’s for contractors placed at their location. The DOL cites to a new USCIS regulation which is expected to be issued on Tues the 19th which changes the definition of an employer. The DOL specifically states that this memo “better comports with the goals of the Executive Branch policy” The new memo will take effect on July 14, 2021. The Wage and Hour Office also issued a Field Assistance Bulletin implementing the above memo. It is expected that the new Biden Administration will examine this new policy.
Yesterday, the USCIS was handed another defeat at the hands of a Federal Judge, this time from Atlanta. In a case that echoed prior decisions from other Federal Courts, the Court ruled that the USCIS’ practice and policy over the past 10+ years relative to H-1b adjudications was unlawful. The decision struck at the interpretation of employer-employee and the itinerary requirement which had resulted in the issuance of shortened approval notices. A copy of the full decision can be read here
In even better news, the USCIS conceded defeat in only what can be imagined as the scene from the Wizard of Oz when it was proclaimed “Ding Dong the Witch is dead” and they entered into a settlement agreement.
This settlement agreement provides for the following:
1. The USCIS will rescind the 2018 Contracts and itinerary memo
2. The USCIS will stop applying the current itinerary language
A portion of the settlement agreement states that they will not apply the Neufeld memo but, this may be more limited than it is being reported.
What does this mean practically ?
1. There should be no more shortened approval notices limited by the duration of the WO/JO/SOW.
2. End client letters or other documentation should not be routinely required but, the USCIS may continue to ask for this type of documentation to prove the existence of a job that meets the specialty occupation standards
3. The USCIS will not automatically re-open previously shortened cases and issue full approval notices but, you can go into Federal Court and force this action.
As a result of these actions, we can expect the USCIS to issue new regulations but, given the amount of time it takes for regulations to be finalized, these will likely be completed by the Administration that wins in Nov.
A special thanks and salute to Jonathan Wasden and his team for these hard fought victories.
Last week, the USCIS was met with another Federal lawsuit claiming that they are failing to properly follow the law when adjudicating H-1b cases filed on behalf of market research analysts. A successful outcome could provide assistance for others; such as business analysts, systems analysts, telcom, and finance occupations where the USCIS has questioned whether they meet the specialty occupation standards. This lawsuit was backed by the American Immigration Council and more information can be found here.
We often hear about the victories that IT cos. have been scoring over the USCIS when litigating H-1b denials relative to specialty occupation, beneficiary qualifications, and employer-employee relationship issues; and, the wins are numerous. We rarely hear about the losses but, recently a Federal Court in Az. ruled against an IT company’s pursuit of a preliminary injunction over 18 denials. The Court ruled that the company had not proven irreparable harm in denying the motion. The lawsuit remains pending on the substantive issues. A full copy of the decision can be read here.
Once again, the Buy American, Hire American (BAHA) policy of President Trump which has resulted in higher rates of denials for professional IT workers has had unintended (or maybe not) consequences which has resulted in IT jobs leaving the US and going to Canada. Check out this recent summary on Law 360.
Senior partner, Mike Hammond will be a speaker at the TechServe Alliance webinar discussing H-1b visas. The webinar will focus on issues facing IT and Engineering staffing/solutions firms.
The Trump Administration has directly and without equivocation attacked legal immigration sending U.S. employers and legal international workers into a state of uncertainty. For a nice summary, check out this recent article. In what can only be described as an ironic twist, Trump appointees to the Supreme Court, Gorsuch and Kavanaugh may soon come to the aid of legal immigration. Both justices, as well as most conservative leaning justices, generally take positions that Federal agencies may not contravene legislative acts of Congress by regulatory actions. Further, they generally hold that Federal agencies may not bypass the Administrative Procedures Act and govern by sub-regulatory actions such as memos, web-site updates, tweets, and unwritten policies. All of the above accurately describe how the Trump Administration has chosen to attack and curtail legal immigration particularly in the realm of H-1b visas. For a description of how the Supreme Court may indirectly take up the issue of business immigration, check out this article.
Earlier this month, Compete America issued a letter to the USCIS challenging the way the agency is handling H-1b petitions in a manner that is negatively impacting STEM jobs, U.S. graduates, and U.S. employers and the practical effect is to promote off-shoring and the outsourcing of U.S. jobs overseas. Read the full letter here.
New proposed DOL regulations have taken direct aim at the staffing industry in an effort to create a chilling effect in the marketplace and limit this industries ability to employ H-1b workers. The Trump administration’s initiatives can be aptly described as death by a thousand cuts ! Bloomberg did a nice summary of the proposed regulation and other changes the industry has seen in the past year. Public comments on the new proposed regulation are due June 25th. We will provide an update once the new regulation goes into effect.
The USCIS has announced that is has suspended premium processing for H-1b cap cases to be filed April 1st. This move was expected and previously announced to clients during our H-1b conf. call in Feb. Premium processing remains for all other H-1b filings.