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Anti-staffing memo fight sees some success

August 30 2010

Opponents of a U.S. Citizenship and Immigration Services memorandum that appeared to attack the staffing industry's use of H-1B visas -- particularly by IT staffing firms -- scored a partial legal victory.

The TechServe Alliance, American Staffing Association and three firms that provide H-1B visa workers, sued the USCIS in June over the "Neufeld Memo." The memo offered USCIS workers information on determining which companies could be defined as employers when considering H-1B applications. The memo listed "third-party placement/job shop" as an example of a business that wouldn't qualify as an employer.

A federal judge issued a ruling in the case on Aug. 13.

Mark Roberts, CEO of the TechServe Alliance, said today that positives from the case include:
•The government conceded staffing firms can be considered employers for the purposes of bringing in an H-1B visa worker.
•The memo does not bind USCIS workers when making decisions on H-1B status.

On the other hand, Roberts said the judge declined to issue an injunction stopping use of the memo and dismissed the case.

"There's nothing like absolute victory," Roberts said. However, the suit was able to force the government to make concessions for staffing firms, he said.

The plaintiffs had argued in the suit that the USCIS improperly changed long-standing policy and that it didn't follow the proper notice-and-comment rulemaking process and other procedures. In her ruling, Judge Gladys Kessler wrote the memo "does not constitute a final agency action subject to judicial review and the notice and comment requirements under the [Administrative Procedure Act]."

The plaintiffs in this case have 60 days from Aug. 13 to file an appeal and consideration is under way on what step to take next., Roberts said. "We are still conferring with our lawyers and evaluating the good parts of the decision as well as the likelihood of success on appeal as well as talking with various stakeholders," he said.

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