May 11, 2018

Lawsuit Challenges USCIS’ New Policy on H-1B Eligibility for Job Contractors

On May 1, 2018 a consortium of companies filed a motion requesting a temporary restraining order and preliminary injunction against USCIS’s recent Policy Memo (PM-602-0157) regarding H-1B eligibility for job contractors. The Policy Memo in question requires H-1B petitions involving job contractors to submit work itineraries; evidence of the specific, non-speculative work for the entire validity period; and evidence that work performed at third-party worksites will be in the specialty occupation, among others.

Plaintiffs filed the case in the United States District Court in Newark, New Jersey. Defendants are named as the Department of Homeland Security, DHS Secretary Kirstjen Nielsen, U.S. Citizenship and Immigration Services, and USCIS Director Francis Cissna. In general, the lawsuit is a technical challenge to USCIS’ ability to create and implement a new definition of the term “employer.”

Specifically, the lawsuit argues that USCIS’ adjudicatory role in H-1B petitions is limited to determining whether a position qualifies as a specialty occupation and if the beneficiary meets the minimum requirements for that position. Because the Labor Condition Application underlying an H-1B petition is signed by the employer and certified by the Department of Labor, the Department of Labor has authority to define and control who qualifies as an “employer” in the H-1B program. Therefore, the lawsuit alleges, USCIS does not have the authority to create a new definition of an “employer.”

Another claim in the lawsuit is that USCIS’s recent Policy Memo creates new eligibility requirements for job contractors and the new definition of an “employer” contradicts the Department of Labor’s definition and current regulations. Because the Policy Memo conflicts with current regulations, it is actually a Legislative Rule which requires a notice and comment period. Since no notice and comment period was conducted, even if USCIS has the authority to create a new definition of “employer,” it did not do so lawfully.

Finally, the lawsuit claims that the itinerary and “specific and non-speculative” requirements violate the original intent of the Immigration and Nationality Act (“INA”). Because it violates a statute passed by Congress, the Policy Memo is thus unlawful, according to the lawsuit.

If the lawsuit is successful, it will enjoin USCIS from applying the recent policy memo in adjudicating H-1B petitions. For more information about USCIS’s new H-1B Policy Memo and how it may impact your company please contact our office.

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