by Chris Musillo
The Techserve Alliance (formerly the NACCB), the American Staffing Association, and three private companies yesterday sued the USCIS alleging that the government illegally issued the Neufeld Memorandum. This issuance altered long-standing policy that had allowed staffing firms to obtain H-1B visas on the same basis as other companies.
In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not "employers".
But this is wrong. Existing law defines an "employer" as one who may "hire, pay, fire, supervise, or otherwise control the work of any such employee". Plainly, staffing companies meet these characteristics. Instead of applying the law as it was written, the Neufeld Memorandum allows the USCIS to pay lip-service to these five factors.
The Memorandum has caused grave concerns for many companies that use the staffing model because of inconsistent adjudication and unlawful USCIS denials. The IT staffing industry has been particularly impacted. The Memorandum derisively referred to the IT staffing model as a "job shop". Healthcare staffing models recently have also come under fire; USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.