Added High-Skill Visa Requirements Illegal, Lawsuit Says

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By Laura D. Francis

A recent Homeland Security Department policy memorandum that places additional requirements on employers that place H-1B workers at third-party client sites is unlawful, according to a lawsuit filed in federal court.

The memorandum essentially keeps information technology staffing companies from participating in the H-1B skilled guestworker program, Jonathan Wasden, one of the attorneys in the case, told Bloomberg Law May 2.

The lawsuit, filed by a group of IT staffing firms, is seeking a temporary restraining order blocking enforcement of the memorandum.

Employers seeking extensions of H-1B status on behalf of their workers already are seeing denials because they couldn’t provide the itineraries required in the memorandum, which came out in February, Wasden said. Nearly all of the H-1B employees of the three companies that filed the lawsuit need extensions in the next year or so, and the companies stand to lose their entire workforce if the memorandum continues to be enforced, he said.

“If you’re a business owner, the whole point is you’re always trying to get more business and that’s going to require you to be nimble,” Wasden said. The need for the flexibility to move workers to different client sites means these businesses can’t provide the “specific and nonspeculative assignments” the memorandum requires for the entire three years of the H-1B visa, he said.

A DHS spokeswoman May 2 declined to comment on the complaint when contacted by Bloomberg Law.

Immigration Litigation

The case, filed May 1 in federal district court in New Jersey, is the latest in a growing series of lawsuits against the Trump administration’s immigration policies and regulations on high-skilled immigration.

A lawsuit over the delay of Obama administration regulations setting up a program for immigrant entrepreneurs has resulted in a court order that the program be implemented.

Several lawsuits also have been filed over the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program, as well as to end Temporary Protected Status for nationals of Haiti, El Salvador, Nicaragua, and Sudan.

Immigration attorneys already have hinted that there will be a lawsuit challenging the DHS’s plan to end a work program for the H-4 spouses of H-1B workers waiting for their green cards. Proposed regulations to end the program were supposed to have been released in February but have been delayed until June at the earliest.

Stealing DOL’s Thunder

The current lawsuit claims that the DHS’s U.S. Citizenship and Immigration Services overstepped its authority with the February memorandum.

It’s the Labor Department’s job to determine who counts as an “employer” under the H-1B program, according to the complaint. The DOL went through “six or seven different rounds of notice and comment” before concluding that staffing companies can seek H-1B workers without any additional restrictions, Wasden said.

The DOL regulations and the Immigration and Nationality Act also allow for periods of “nonproductive status” in which H-1B workers don’t currently have a work assignment, as long as those workers continue to be paid the prevailing wage, he said.

That directly contradicts the USCIS memorandum’s requirement that H-1B workers have specific assignments for the duration of their visas, Wasden said.

The case is Small & Medium Enter. Consortium, Inc. v. Nielsen, D.N.J., No. 2:18-cv-08672, complaint filed 5/1/18.

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