03/10/2020 DECISION: ITSERVE ALLIANCE, INC. v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

03/10/2020

Judge Rosemary M. Collyer of the US District Court for the District of Columbia ruled in the favor of ITServe Alliance, Inc. in its Administrative Procedure Act (APA) suit against USCIS.  This is extremely positive news for H-1B Petitioners and Beneficiaries, and in line with the arguments that these stakeholders have been making before USCIS for some time.

The decision makes for some great reading as the Judge deftly fillets USCIS’s “strategic” attempts to ensure that its Policy Memos maintain sufficient legal standing to have the force of the law, but not sufficient to be legally challenged; the Judge also rejects USCIS’s interpretation on the issues of, “Employer-Employee Relationship” and “Specialty Occupation”, indicating that, “The CIS interpretations…are plainly erroneous“, and dismisses the Itinerary requirement quite simply because, “…is not in the statute.”

“The Court concludes that, as applied to these Plaintiffs in the IT consulting sector, it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS, requiring contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates the legislative nature of the CIS interpretation of the Regulation because it would effectively destroy a long-standing business resource without congressional action.”

Next action: “The subset of cases that are assigned to Judge Rosemary M. Collyer will  be remanded to CIS for reconsideration consistent with this Opinion and the Court will order that such reconsideration shall be completed in no more than 60 days.”

Additional Excerpt of the Decision Below:

“Approximately thirty-three cases have been filed in this District challenging the handling of H-1B visa applications by CIS, a constituent agency of the Department of Homeland Security (DHS). Although not “related” within the meaning of Local Civil Rule 40.5(a)(3), the cases have been consolidated before this Court with the agreement of the assigned Judges for briefing on three legal issues under Local Civil Rule 40.5(e):

1. the authority of CIS to grant visas for less than the requested three-year period;
2. the authority of CIS to deny visas to companies that place employees at third-party
locations either because the third party is determined to be the employer or because
specific and detailed job duties are not provided with the visa application; and
3. the related statute of limitations issues raised by the government.

See 3/6/2019 Minute Order Referring Case for Limited Purpose (Consolidation Order), ERP Analysts v. Cissna, No. 19-cv-300. Question 2 concerns the employer-employee relationship, the availability of work for a temporary foreign worker, and the foreign worker’s maintenance of status. Plaintiffs allege that CIS is applying new versions of these requirements, without engaging in rulemaking, to H-1B applicants that are IT consulting firms and not to other U.S. employers.

The Court finds, as discussed below, that:

1. The 1991 Regulation was adopted by INS through notice-and-comment rulemaking and the statute of limitations ran out long before this case was filed. It is subject only to an as-applied challenge.

2. CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to as the Neufeld Memo, from which comes a new employer-employee relationship set of requirements. It is timely challenged on an as-applied basis but not as a facial challenge.

3. CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can be challenged either facially or as applied.

4. The current CIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.

5. The CIS requirements that employers (1) provide proof of non-speculative work assignments (2) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced.

6. CIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.

7. CIS has the authority to grant visas for less than the requested three-year period but must provide its reasoning behind any denials, in whole or in part.”

Read the Decision: ITSERVE ALLIANCE, INC. v. USCIS

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