June 16, 2010

Source: SAALT

Six months after making a controversial decision that undercut the ability of private companies to obtain necessary H1B visas, the U.S. Customs and Immigration Service will have to defend its choice in court.
In January 2010, USCIS issued a memorandum (the Neufeld Memo) affirming that an employee-employer relationship must be maintained throughout H1B employment, and suggesting that staffing firms that send information technology professionals to work with clients do not maintain this relationship.  As such, IT staffing firms throughout the United States have become ineligible to petition for H1B visas.
In the immediate aftermath of the Neufeld Memo’s issuance, on January 11, 2010, a team of federal agents implemented the Memo’s directive by staking out New York-area airports to detain arriving Indian H1B professionals and send them back to India.  The workers’ employer-sponsored H1B paperwork noted the employer’s address instead of the client locations their employers directed them to travel to – a violation of the new policy.
On June 8, 2010, a group of information technology companies led by the TechServe Alliance, filed suit challenging the Neufeld Memo in the U.S. District Court for the District of Columbia.  The lawsuit alleges that USCIS did not provide the public a chance to review and comment on the changes to the H1B employer-employee relationship screen, as required by law, failed to assess the impact of the change on small businesses, did not have the authority to make such a change, and that the Neufeld Memo was arbitrary and unauthorized.
The Neufeld Memo’s assessment and impact is just another of the many challenges facing South Asian skilled workers on H-1B visas.  Severe visa caps also make it difficult for skilled South Asians workers to fill gaps in the American workforce, H-1B workers who are here endure long waits for green cards because of annual per-country caps, and they are limited in changing jobs or receiving promotions.
For more information on immigration priorities for the South Asian community click here.