The District Court for the DC Court of Columbia ruled March 10 that a 2018 USCIS memo used to evaluate the work of H-1B employees at third party sites was unlawful because it had not gone through proper rule-making procedure before implementation.
Judge Rosemary Collyer ruled on a lawsuit brought on by IT Serve Alliance, an ad-hoc organization representing Indian H-1B workers. The lawsuit questioned the validity of a February 2018 USCIS memo which sought to expand the scope of a 2010 missive known as the Neufeld memo.
ITServe Alliance stated in its suit that the memo had not gone through the proper rule-making procedures — which normally include a 30 or 60 public comment period — before it was implemented.
Collyer has given USCIS 60 days by which it must act on all outstanding petitions.
“Rather than implementing the rule of the law, USCIS has been resorting to random rule-making through internal memos. This judgment in favor of ITServe Alliance puts an end to this. It's checkmate!” said ITServe Alliance in a tweet after Collyer’s ruling was issued.
In a blog post, the organization alleged that USCIS had adopted an “erratic H-1B adjudication pattern” which it had been challenging since the Neufeld memo was issued.
The Neufeld memo stated that the employer-employee relationship at third party sites was often vague and in violation of the rules for H-1B workers.
The 2018 memo expanded the Neufeld memo, stating that the petitioner had to prove that the H-1B worker would be working in a specialty occupation at the third party site, in specific assignments for the entire length of his employment at the third party site, an “itinerary” of sorts.
The 2018 memo stated that the petitioner had to provide corroborating evidence that the H-1B worker would be occupied in a specialty occupation throughout his tenure at the third party work-site. Such proof could include: evidence of actual work assignments, copies of detailed statements of work or work orders signed by an authorized official at the end-client company where the work would actually be performed by the beneficiary, including job duties, the duration of the job, and the hours to be worked.
The petitioner would also be required to submit a detailed description of who will supervise the H-1B worker and the scope of the worker’s duties, along with related evidence.
“If the petitioner does not submit corroborating evidence or otherwise demonstrate that there is a specific work assignment for the H-1B beneficiary, USCIS may deny the petition,” stated the 2018 memo.
Around the same time, the Trump administration greatly narrowed what classified as a specialty occupation.
ITServe Alliance said after Collyer’s ruling in the organization’s favor that employers of H-1B workers who would be placed offsite no longer had to provide an itinerary for their work. USCIS must now also state its rationale for denying a petition or for issuing only a short-term approval, explained ITServe Alliance of Collyer’s decision.
“Our fight to force USCIS to implement the rule of the law is not over. We want to continue our effort and build on this. We have momentum on our side,” stated the organization.