On Friday, the USCIS held an open forum to discuss the impact of the January Neufeld memo which prohibited “job shops” from participating in the H-1b program, and, specifically, the impact to healthcare staffing companies. Both Sherry Neal and myself attended along with several other attorneys that represent physician and therapy staffing companies. First, I do have to give kudos to the USCIS for even having such a session. Certainly, it would’ve been nice to have such an information gathering session PRIOR to the release of a policy memo that changes 30 plus years of practice but, hey, better late than never.

Secondly, the motive behind the memo attacking “job shops” was confirmed. The memo was released with the intention of preventing “job shops” from participating in the H-1b program. Follow the bouncing ball:

Lots of “fraud” in the H-1b program perceived by certain Congressional members (refer to the “fraud” report from the fall of 2008 which by the way is one of the most flawed reports I have ever seen) +
Lots of fraud observed by USCIS officials from site investigations and other initiatives +
The majority of both the “fake fraud” touted by Congressional members and the real fraud observed by USCIS was committed by “job shops” +
Limited to no impact of anti-fraud measures from the enforcement side of USCIS and/or DOL

= “Eureka moment” We can prevent fraud by simply declaring the class most responsible for the fraud ineligible to file.

It started with the requirement of end client letters, followed by an incredulous interpretation of the itinerary requirement and culminated with the January Neufeld memo. The USCIS is smart, they knew that a memo that simply stated “ No More Job Shops Need Apply” would likely have trouble passing APA muster and even some Congressional members may get a bit perturbed at having their legislative powers usurped but, throw in an interpretation of the employer-employee definition and cite some Supreme Court cases and presto: you have reached the same result. The fact that the USCIS definition of employer-employee is in disagreement with every other federal and state agency and 30 + years of practice from their own agency be damned. They got the result they wanted !

But, now, we arrive at the reason for the Friday meeting, “unintended consequences”. The vast majority of the fraud was being committed by those nasty IT job shops and preventing medical doctors, physical therapists, and occupational therapists from obtaining H-1b visas was not the result the USCIS was trying to achieve. Oops, they didn’t even consider the impact to the healthcare field. Alas, a solution that allows medical “job shops” to operate without allowing IT “job shops” is being sought and frankly, I left the meeting with a feeling that a solution will be achieved. Whether it is based upon a simple “carve-out” of medical occupations or the production of a new list of incidences of employment; specifically, those that a medical staffing company may have an easier time meeting eg. License, malpractice insurance, etc or whether the word will trickle down to the officers at the service center, whispered from cubicle to cubicle and at each smoke break, “pssst, we aren’t targeting the medical staffing companies, only those horrible IT shops, wink wink !”

All in all, it was a great meeting and I left with the conclusion that a legislative solution is needed. A unique visa for job shops of all types with significant anti-fraud measures i.e. the type that make your knees ache in the middle of the night if you are a job shop owner and are thinking about benching someone without pay. I call on Congressional members to do your jobs, legislate. Don’t dump this problem in the laps of the USCIS.