The American Immigration Lawyers Association (AILA) sent a letter to USCIS today, requesting that the January 8th “Neufeld memo” on the “employer-employee relationship” be withdrawn. In the letter, AILA pointed to four key problems with the memo:

1. The memo is a new policy that is inconsistent with current regulations: The regulations already define “employer” for H-1b context and indicates control when the employer “may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The Neufeld memo adds additional requirements beyond what the regulations say.

2. The policy imposes significant economic burdens on business, at time when the government should be trying to encourage business growth: Employers will have to spend considerable time and money gathering additional evidence to file an H-1b petition or respond to a request for evidence. The additional paperwork and increased “unpredictability” of adjudications has a chilling effect on employers who want to hire H-1b workers. Also, AILA pointed to several studies of the positive economic of H-1b employment, including one study that found that “U.S. technology companies increase their employment by an average of five U.S. workers for each H-1b worker they hire.”

3. The memo will have serious adverse affects on employers and individuals: AILA pointed to state restrictions on physicians being employed directly by hospitals and to locum tenens and other temporary placement arrangements in the healthcare area (including therapists) where it will be difficult to satisfy the standards of the memo. AILA also pointed to government contracts as not being able to meet the standards. The memo will also negatively affect H-1b workers who file to change employers or extend status, and may have adverse effects on their permanent residence petitions. AILA noted that it is not just the H-1b petitioner and the H-1b worker that are impacted — the end-users are also effected as they may experience a disruption in work for an H-1b worker that is not able to extend status or when additional staffing is needed.

4. The policy is spreading to other nonimmigrant and immigrant petitions: AILA noted that USCIS has been adjudicating L-1 petitions and I-140 petitions based upon this new, heightened standard of employer-employee relationship.

AILA also re-iterated that the new policy is a violation of the Adminstrative Procedures Act, and urged that the memo be withdrawn immediately.