News Release from Jewell & Associates, PC - January 13, 2010
On January 8, 2010, USCIS’s Associate Director, Service Center Operations, Donald Neufeld, issued a memo making additions to the Adjudicator’s Field Manual (AFM), the manual used by USCIS officers in adjudicating nonimmigrant and immigrant visa petitions, including H-1B petitions. The January 8, 2010 “Neufeld Memo” is intended to provide guidance in determining the existence of an employer-employee relationship in the context of H-1B petitions, including H-1B petitions in which an owner of the petitioning entity is also the H-1B beneficiary, and H-1B petitions involving third-party site placements. The memo appears designed to limit the approvability of such H-1B petitions. The memo is troubling in that it is not fully consistent with the existing federal regulation at 8 CFR §214.2(h)(4)(ii)(2) that identifies the factors defining an employer-employee relationship.
Under accepted principles of administrative law, it is not proper for USCIS to make significant new rules through the issuance of memos. Under the Administrative Procedure Act, significant changes in agency regulation, policy or practice require that appropriate notice be given to the public and that the public be permitted to comment. Accordingly, we expect the Neufeld Memo to be met with vigorous opposition and a call for withdrawal of the memo.
The Neufeld Memo is available on the USCIS web site at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf
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