The NFAP has published a study on H-1b usage. One of the more interesting finds is that sponsorship of new H-1b petitions by the traditional Indian off-shore houses has fallen. The assumption is that this is the result of the roadblocks designed to make it more difficult for staffing/consulting companies to place H-1b workers at 3rd party sites that started with the 2010 Neufeld memo and has been on steroids since the current Administration took control. This is a reasonable interpretation but, what is a more interesting question is whether or not these large Indian outsourcing houses have been able to use these roadblocks to their advantage to encourage more projects to be moved overseas and, if so, these roadblocks have ultimately served to decrease the number of US jobs and increase the number of outsourced projects. Unintended consequences can often be quite the bitch.
This week, the USCIS released revised FAQ's clarifying portions of the Jan 2010 Neufeld memo. The original Neufeld memo declared that staffing cos. engaging in staff augmentation were not employers as that term was going to be interpreted by the USCIS. After a significant amount of lobbying by various business and legal groups, most notably TechServe Alliance, the USCIS has now modified their position. Specifically, question thirteen notes that there are situations in the consulting / staffing world that would constitute a valid employee – employer relationship. USCIS noted that adjudicators would consider the following factors in reviewing the relationship: “whether the petitioner pays the beneficiary’s salary, whether the petitioner will determine the beneficiary’s location and relocation assignments . . . , and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling.” Question five which specifically states that end client letters are not required is not a change but, has been a part of the policy since August of 2011. We are very pleased to see this guidance from USCIS. We are hopeful that the adjudicators at the Service Centers and Consular officials take note of this guidance and follow it.
Coinciding with the release of a study conducted by the National Foundation for American Policy, a group of US business leaders met with President Obama and urged him to reform the skilled visa system through the utilization of policy reforms. Though President Obama consistently talks about government getting out of the way of private business, his policy-makers at the USCIS have been acting in just the opposite manner. The USCIS through the use of policy memos such as the January 2010 Neufeld memo have engaged in a systematic campaign to thwart the growth of US businesses that utilize foreign workers. Specific policies have been directed at entrepreneurs and small and medium sized businesses who often drive employment growth especially in recessionary times. It is hoped that President Obama will turn some of his talk into action. The Huffington Post has published a summary of some of the proposals that were discussed during the meeting. Check it out and forward it to your friends and your Congressional reps because although there is much that President Obama could do, significant changes will likely require legislation.
Last week,TechServe Alliance representatives met with USCIS Director Mayorkas and discussed the use of the H-1b program by IT staffing and consulting firms and specifically, the negative impact of the Neufeld policy memo. It is hoped that by listening to US stakeholders that the USCIS will implement H-1b policies that are more consistent with job growth and the promotion of entrepreneurship.
On Fri, 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 attys. 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 2009 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 [...]
The American Immigration Lawyers Association (AILA) has a Business Litigation Committee (BLC) and we met this week and the hot topic of discussion was the recently released Neufeld memo. There is a strong belief that the memo was issued in violation of the Administrative Procedures Act. There is also the belief that the memo violates long-standing precedent and established law. It is believed that there are numerous industry groups as well as individual companies that may be pursuing litigation on this matter. The BLC is in the process of working with the American Immigration Council to create a special section within its clearinghouse service http://www.legalactioncenter.org/litigation-clearinghouse specifically dedicated to collecting and posting relevant documents and information on this issue. This will allow all interested parties to be kept up to date on efforts being made to address this policy. We are looking for information regarding actual litigation as well as significant meetings, letters, etc. to USCIS officials as well as Congressional members on this topic. We will then organize the relevant documentation and make it available for access by others. If you are interested in participating in this clearinghouse effort, please keep us updated on your efforts. contact firstname.lastname@example.org for additional info.