Law Offices of Kamlesh Tewary, P.C.
There has been a large amount of speculation and fear surrounding the issuance of the January 8, 2010 memorandum from Donald Neufeld regarding employer control in the context of H-1B visa petitions. One major question has been whether the USCIS intended to cast a negative light on H-1B filings by staffing companies, by suggesting that such companies do not qualify as "employers" for H-1B purposes. To address these concerns, USCIS held a public "Collaboration Session" on February 18, 2010. During the session, business owners, attorneys and members of the public raised their concerns about the memorandum. The USCIS officials did not address most of the points raised, as the purpose of the session was for USCIS to get a sense of the public's concerns and then to decide on any requisite policy changes. However, USCIS leaders did note a few important points:
* The purpose of the Neufeld Memorandum was not to target IT companies or to put an end to the consulting/staffing business model.
* The memo, which took around a year to formulate, was not issued as a response to allegations of widespread fraud in the H-1B program.
* The memo's purpose was to create a uniform policy regarding employers/employees, and thereby put an end to the inconsistent RFEs and denials that have been issued by the Service Centers on this topic.
* Since the issuance of the Neufeld memo, all H-1B denials have required supervisor approval prior to being issued. Normally supervisor approval is only required in Motions to Reopen (MTRs). This policy was instituted by USCIS headquarters to avoid improper denials based on a misinterpretation of the Neufeld memo.
* Recent turnaways by CBP officers of H-1B visa holders at Newark and other ports of entry have not been caused by the issuance of the memo. Those cases involved suspected fraud by the H-1B petitioner or the employee.
During the session, USCIS did confirm that it is receptive to pressures put upon it by members of Congress, even absent the passage of specific immigation legislation. This is a telling indication of the need for concerned immigration stakeholders to mobilize their Congressional Representatives and Senators to shift USCIS policy onto a more favorable path. There will be another collaboration session on the same topic on March 1. Interested parties can register at the USCIS.gov website.
**Information in this press release is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.**
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