Immigration Lawyers Attack Trump’s ‘War on Contractors’

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By Laura D. Francis

The American Immigration Lawyers Association’s litigation task force could have its hands full as the Trump administration continues to develop new policies and practices that take aim at contractors participating in work visa programs.

One lawsuit already has been initiated in the matter: A complaint filed in federal district court in New Jersey in May challenges a recent U.S. Citizenship and Immigration Services policy about what contractors must provide in their petitions for H-1B skilled guestworker visas. The lawsuit was filed on behalf of a consortium of contracting companies.

The policy is likely to have wide-ranging effects, given that just about all large companies use contractors in some way, Sharon Mehlman of Tafapolsky Smith Mehlman in San Diego, said June 14.

And H-1B visas are wildly popular, especially among big information technology staffing companies such as Cognizant Technology Solutions and Tata Consultancy Services.

‘Impossible’ Level of Detail

The February memorandum says employers must provide details about every third-party site where an H-1B visa holder will work during the entire three-year validity period. But providing that level of detail is “really impossible in a contracting situation,” Melman said at AILA’s annual conference in San Francisco.

In most industries, labor contracts last only six months at a time, with an option to renew, she said. And those contracts don’t call for a specific worker, but rather a position to fulfill a certain function, she said.

“This is the end for a lot of my cases because we are not going to be able to meet this standard,” Mehlman said.

“There seems to be a war on contractors,” Mehlman said. The USCIS is taking the position that placing H-1B workers at third-party sites is an avenue for fraud, “but this is a legitimate business model,” she said.

A representative for the USCIS didn’t immediately respond to Bloomberg Law’s request for comment.

Disney Case

Lori Chesser of the Davis Brown Law Firm in Des Moines, Iowa, said it’s important to know what the administration’s mindset is.

“We have to try and put ourselves in their shoes,” she said.

The administration’s attitude toward contractors seems to stem from a 2015 case in which IT workers at Walt Disney World were laid off and replaced by H-1B workers, whom the laid-off workers had to train in order to receive their severance packages, she said.

That practice is legal under current immigration law. Florida employment attorney Sara Blackwell, who represented the Disney workers, recently announced that she was dropping her lawsuit over the layoffs and called on President Donald Trump to push for a change in the law.

“The optics” of the Disney case “were terrible” regardless of whether it was legal, Chesser said June 14. The heads of the immigration agencies “have been into that issue for a long time,” and “this is their chance to make that stop,” she said.

“That’s what they’re trying to do” with the policy changes surrounding contractors, she said.

More Lawsuits Coming

Immigration attorneys plan to challenge those policies.

There’s likely to be a lawsuit soon over the USCIS’s new policy blocking the third-party placement of international students in a post-graduate training program for science, technology, engineering, and mathematics majors, Sheela Murthy of the Murthy Law Firm in Owings Mills, Md., said.

Another lawsuit against a May USCIS policy on how international students could start accruing “unlawful presence” also is on the horizon, Robert Cohen of Porter, Wright, Morris & Arthur in Columbus, Ohio, said.

Unlawful presence is time in the U.S. that counts against a foreign national who may wish to leave and return legally. Under current policy, it only starts accumulating once the Department of Homeland Security becomes aware that someone has violated the terms of his or her visa.

The new policy starts counting as soon as the violation occurs, even if the international students aren’t aware of the violation.

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