June 25 2010
On June 8 2010 the trade group TechServe Alliance, the American Staffing Association and three staffing firms filed suit against US Citizenship and Immigration Services (USCIS) in the US District Court for the District of Columbia, seeking to overturn a USCIS policy change announced early this year. The lawsuit challenges the January 8 2010 Neufeld memo, which effectively bars selected categories of company in the outplacement and consulting industries from using the H-1B programme.(1)
For several years before Neufeld, USCIS had been building up a restrictive new rules and inspections regime targeting companies that employ H-1B workers at client sites. Thousands of H-1B and some L-1 cases were denied or delayed before January 2010 on similar grounds. Until the release of the memo, USCIS had not fully explained its rationale in carrying out a policy that effectively discriminates against outplacement companies, many of which have offshore parents or affiliates in India. However, this policy is neither new nor restricted to staffing agencies. Therefore, the complaint could affect the interests of a broader group of potential and future litigants. There are some aspects that indicate that the plaintiffs should amend the complaint and consider affirmative refiling of the case with the US Circuit Court of Appeals, which has clear subject matter jurisdiction over the matter.
The concerns fall into three categories. The first involves issues of venue and jurisdiction that may lead to the case being rejected on jurisdictional grounds by the district court and a potential ruling within the DC Circuit that subject matter jurisdiction for this type of case rests solely with the Circuit Courts of Appeals. That would have potential negative future impact on litigation nationwide.
The second involves the substance of the complaint - counts three and four make legal arguments that may face difficulty with key case law in the DC Circuit, as will be explained below.
Finally, the plaintiffs are asking the court to uphold a particular business model employed by staffing agencies that assign workers to client sites - either without maintaining control over their employee's offsite activities, or by shared management with third-party clients - and the suit requests that the judge strike down measures taken by USCIS to restrict those business practices where the right of control is not demonstrated. In order to protect their business model, the plaintiffs are asking the court to rule that USCIS may not adopt a common law definition of 'control', despite the fact the Supreme Court has repeatedly held that federal agencies may do so.
Another concern springs from the assertion that the Neufeld memo amounts to a substantially new policy. It is not a new policy. The memo acknowledges and expands on a USCIS policy targeting H-1B outsourcing that has been ongoing for several years. The plaintiffs represent as fact that the petitions filed to renew H-1B status for the three named staffing firms were routinely reviewed and approved by USCIS in previous years before issuance of the Neufeld memo. That would be an extraordinary track record for any firm that proposes to place H-1B workers at third-party sites, whether they be direct employers or staffing agencies. All such employers, direct employers and staffing agencies have been facing an increasingly high percentage of requests for evidence and denials in recent years on these same issues.
Since at least 2006 until early 2010, USCIS has routinely cited a Fifth Circuit case, Defensor v Meissner,(2) as authority for nationwide application of the control requirement, which is essentially the same dicta as that asserted in Neufeld. It was unnecessary to assert that Neufeld is essentially a new policy.(3) At the very least, it is implied that before January 2010, the plaintiffs had no problems with these same policy issues, which does not seem consistent with the experience of other H-1B petitioners.
Indeed, there are large numbers of potential plaintiffs who were "adversely affected or aggrieved" within the meaning of Section 704 of the Administrative Procedures Act by essentially the same policy before the release of the memo. It is no use to them if a judgment against USCIS H-1B policies is restricted to cases adjudicated after January 8 2010.(4)
The plaintiffs submitted a five-count complaint(5) that raises the following issues and arguments. The first two counts are unremarkable and a court is likely to find these meritorious on their face. Counts three and four, however, may prove to be more difficult to sustain.
Count one states that Neufeld was a substantial change in agency policy that was not published in the Federal Register before it took effect, as is required by the 'publish and comment, provision of Section 553 of the Administrative Procedures Act.
The complaint says Neufeld was not reviewed or certified under the Regulatory Flexibility Act for its significant impact on numerous small businesses, as required for such a rule.
Count three argues that Neufeld establishes new rules that conflict with and are substantially inconsistent with existing USCIS regulations defining the employer-employee relationship for H-1B workers and the companies that petition for them. Instead of following its own regulatory definition, USCIS now imposes a definition of 'control' found in common law, making it prohibitively difficult for outplacement firms to qualify for H-1B sponsorship.
The complaint makes the legal argument that USCIS may not apply the common law precedent cited: "[T]he common law definition applies only in the absence of a statutory or other legal definition." The plaintiffs' argument at count three continues: "Here, the extant regulation expressly defines the term, and therefore Darden(6) is not applicable on its face." The plaintiffs do not cite any case or legal authority for that assertion in the complaint. The plaintiffs seem to be arguing directly against two Supreme Court decisions that appear to support the government's position that the common law definition of 'employment', which involves the element of control, may be applied by USCIS. Looking closely at the plaintiffs' argument, it is unclear on what basis this is done.
The first place to look is the statute,(7) then the regulation, and finally any other 'legal definition'. Indeed, the plaintiffs are correct that there is no definition of the terms 'United States employer', 'employee-employer relationship' or 'control' in the existing Immigration and Nationality Act.(8) If the statute does not define the terms, there can be only two other sources for legal definitions that are potentially binding on the agency. One would be the regulation. 8CFR Section 214.2(h)(4)(ii) states:
"Pursuant to 8 C.F.R. §214.2(h)(4)(ii), United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number."
The regulation does not appear to prohibit the common law element of control. Indeed, it is cited as one of five stated elements going to the definition of 'employer-employee relationship'.(9) The government will likely argue that 8CFR Sec 214.2(h)(4)(ii) is ambiguous about what is meant by both terms, and that it is free to interpret its own regulations. The plaintiffs are asserting that the common law concept of 'employment' endorsed in Darden and Clackamas cannot be applied to that interpretation, but provide no authority or reasoning as to why that might be forbidden.
The other possible legal definition might be found in 'definitive interpretation', a category of administrative common law recognized by the case law of the DC Circuit. Definitive interpretation applies to agency interpretations that, although unpublished as regulation, have become relied on by consistent usage over time as a sort of binding administrative common law. The DC Circuit, followed by some other circuits, has held that if USCIS wants to change its rules in a way that conflicts with a definitive interpretation, it must do so by publishing a regulation.(10) There is nothing in that line of cases to suggest that any definitive interpretation of USCIS regulations would forbid the application of common law definition of 'employment'. This subject arises again in relation to count four.
The statute does not define the term. The government will argue, perhaps persuasively, that existing regulation is ambiguous. There is no other definitive interpretation to suggest that the common law definition cannot be applied. There is simply no apparent basis to support the plaintiffs' assertion that USCIS cannot apply the common law definition found in Darden or the other Supreme Court decision cited as the complaint would suggest.(11) In both decisions the court held that a common law definition could be applied.(12) Therefore, the plaintiffs' assertion that USCIS may not apply the common law definition of employment in Darden to its interpretation of H-1B regulation will probably not stand up in this case.(13)
That is a very different proposition to arguing that the particular interpretation taken by USCIS in the Neufeld memo is inconsistent with both the regulation and the common law definition as interpreted by the Supreme Court. Indeed, the Neufeld memo is substantially inconsistent with the Immigration and Nationality Act, the regulation at 8CFR and the Darden and Clackamas decisions, and it applies its own notional common law standard in a way that significantly deviates from federal agency norms. Indeed, USCIS has committed clear procedural errors in implementing its policy, and its interpretative rule is "plainly erroneous and inconsistent with the regulation"; the Neufeld memo, as it stands, is not worthy of deference, even by the most deferential possible standard applied within the DC Circuit.(14) That argument seems far more likely to be favourably considered than a bald assertion that "Darden is not applicable on its face", and by extension, that the agency cannot apply a common law definition.
Judge Kessler is likely to find that this is a case of an agency that wants to reinterpret its own definition of 'employer'. The real questions are: (i) whether it has followed proper Administrative Procedures Act procedure in doing so; and (ii) whether its interpretation is sound. It was unnecessary and inaccurate to assert that Darden is not applicable. Even the American Immigration Lawyers Association has conceded that in the absence of clear statutory definition, the USCIS may apply a common law definition, but not in the way that it has interpreted it and certainly not by the irregular procedures that it has used to impose its own interpretation.(15)
Furthermore, it would have been much more on point to say that the Supreme Court cases cited in the memo do not deal with interpretation of regulation; rather, Darden was a civil case and Clackamas dealt with an agency's discretion in applying the common law to an informal rule, which the court found to be reviewable by the Skidmore test, a less deferential standard than Chevron. The plaintiffs might also have pointed out that Clackamas also held that different standards of deference are given by courts to an agency's interpretation of its enabling statute, its own regulations and its less formal interpretative rules. Better to state that under Mead, Kessler might give the Neufeld memo non-deferential treatment, consistent with Georgetown University Hospital v Bowen, as discussed in Justice Souter's opinion.
The point made about the inapplicability of Darden in the initial complaint is so broad that it may be misconstrued. If it is to be taken literally, it will encounter some difficulty in the case law within the DC Circuit which the government is likely to cite in its response. Indeed, if the plaintiffs are arguing that USCIS may not reinterpret its own statute and regulations, there is an overwhelming weight of case law in the DC Circuit that holds exactly the opposite.
In the fourth and final count, the plaintiffs complain that the memo was signed by an official who is not authorized to issue such a rule, and is thus void. This argument is potentially as significant to how this case may be decided under case law within the DC Circuit as the argument that has been advanced in count three. Specifically, at Line 44 the plaintiffs complain: "The Neufeld Memorandum was issued by an employee of USCIS who is not authorized by law to issue rules."
That count was unnecessary and the complaint should be amended. It concedes a point that may need to be reserved. In Amoco (DC Cir 2005) Judge Roberts (now chief justice) ruled that an agency's interpretation was not reviewable under Section 553 if the rule is issued by an official not authorized to issue it. That decision is followed by other decisions within the DC Circuit.
Some DC Circuit judges have taken a highly formal view towards what constitutes a policy that is binding on USCIS, holding that USCIS's interpretation of its regulations must be upheld unless it previously issued a definitive interpretation that is binding on the agency. That potentially erects a series of procedural hurdles. First, if the plaintiff claims equitable reliance on a previously issued informal rule, the court will determine whether the author of the policy questioned held sufficiently authority to bind the agency to the policy. Second, the court will again examine the more recent interpretation challenged, and if that is also found to be non-binding, will dismiss the claim under the Section 553(b)(3) exemption for agency interpretative rules.(16)
The decision in Devon requires close examination in order to understand the nuances of the DC Circuit's current interpretation of these issues. Decided in 2008 by Judges Brown, Edwards and Silberman, the latter two both fixtures on the circuit,(17) the Devon panel incorporated the position taken at brief by the Department of the Interior regarding the highly deferential standard applied. Even when the agency's interpretation is not necessarily the only (or the most) reasonable interpretation, the panel held deference is to be shown in the absence of clear error or "absent a definitive interpretation" of an ambiguous regulation that conflicts with the new interpretation:
"Notice and comment rulemaking was... not required for Interior to change its interpretation of its regulation from how it had been applied as a result of ambiguous guidance documents. This Court has held that the very same guidance documents were not binding on the agency. [See Amoco, 410 F.3d at 732.] If they were not binding, then they are not evidence of a definitive agency interpretation and Interior can change its interpretation without going through notice and comment rulemaking... Absent a definitive interpretation, the [Administrative Procedures Act] does not require notice and comment rulemaking to effect a change in that interpretation."
There is another major issue that the government is sure to raise directly and on appeal. Under court-stripping provisions of the REAL-ID Act 2004, as these are usually interpreted, the district courts have no subject matter jurisdiction over discretionary determinations of H-1B and other non-immigrant visa petitions. "Questions of law and constitutional issues" are expressly reserved to the Circuit Courts of Appeal. This is not necessarily fatal to the plaintiffs' claim, as the case would be transferred to the DC Circuit Court of Appeals for assignment of a panel and a de novo decision. A negative ruling on this issue by Kessler would not be surprising, and would present an unfavourable precedent.
Despite the effort to limit jurisdiction to the appeal courts, the DC district courts have in some cases continued to review matters related to USCIS denials of visa petitions under the Administrative Procedures Act.(18)
However, should the case proceed and should the government lose on the merits, it presents an appeal point to the DC Circuit, and a ruling there that these cases can be heard only by the circuits is not a desirable outcome for other potential litigants on related issues. Further, there are considerable numbers of individuals and groups adversely effected on other grounds by the Neufeld memo and related USCIS actions.
If the suit were to succeed on its own terms, and Kessler were to rule to preserve every aspect of the plaintiff's business model contrary to the USCIS objective of assuring employer control over H-1B workers, this might prove a pyrrhic and short-lived victory. As has happened so many times when faced with unfavourable judgments, Congress might decide to step in and enact some version of the H-1B restrictions contained in both the House and Senate bills.
In the event of a partial defeat on procedural issues in court, which is the more likely outcome, the agency may simply issue the surviving remnants as proper regulations, which would be a far more favourable outcome than having the full weight of HR 4321 and the Senate draft Real Enforcement and Practical Answers for Immigration Reform Bill fall on the industry. That would negatively impact on companies that fully control their H-1B workers, but nonetheless struggle to meet the full burden of the Neufeld memo.
In the meantime, the plaintiffs in this action and any that follow would do well to consider carefully what it is about present USCIS policy that they can or cannot live with, and tailor their litigation to achieve more limited ends that will not result in a ban on H-1B outsourcing by Congress.
Faced with a judgment against its current policy, USCIS might be amenable to a negotiated settlement. If one thinks about the aspects of the Neufeld memo dicta that are actually most burdensome and contrary to law, the requirement for production of contracts with clients and other sensitive third-party materials have been among the hardest to live with, and the related third-party compliance risks are most destructive of trust and good will with customers, to the detriment of the ability of firms that employ H-1B workers to compete in the US marketplace.
One settlement that litigants might work out with the Department of Homeland Security would be to modify the rules so that companies that are not H-1B dependent would not have to submit to the full weight of documentary production and site inspections. Under the present regulations, only H-1B dependent and wilful violators should be subject to heightened scrutiny, even though USCIS now imposes worksite audits on all petitioners through the USCIS Fraud Detection and National Security Data System. In effect, under its current policy USCIS treats all H-1B filers who place employees at client sites as de facto wilful violators or H-1B dependent employers, imposing a heightened burden of evidence, subjecting them to random audits and special scrutiny that the Immigration and Nationality Act states should be reserved for self-designated H-1B dependent employers along with those found pursuant to a Department of Labour administrative hearing to be wilful violators.(19) That is an unlawful policy by USCIS, one that violates the agency's own regulations as well as Administrative Procedures Act standards for rulemaking and hearings along with the adjudication rules.
Another issue that might be negotiated in a settlement would be voluntary adoption of a minimum of Level 2 wages for all advanced degree holders and experienced beneficiaries seeking H-1B renewals.
There are no doubt other concerns that TechServe Alliance members might wish to express in seeking a negotiated settlement with USCIS.
This suit limits its focus to the effect this USCIS policy has on the staffing industry, and fails to raise several other issues related to the broader effects of the major policy changes upon a larger class of H-1B petitioners along with other non-immigrant and immigrant categories. Other issues related to the Neufeld memo not touched on in this suit, but potentially affected by its outcome, include working employers in closely held companies or small partnerships who have had visa petitions denied or revoked on the grounds that they are not employees under the same standards, and thus may not be eligible to obtain initial approvals or petition renewals in H-1B or L-1 status. These persons and firms also have an interest in this case, and should assert their interest before the matter is settled or decided on what may turn out to be a less than optimum basis.
(1) See Memorandum to Service Centre Directors from Donald Neufeld, associate director, Service Centre Operations, USCIS, "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements", (January 8 2010), at www.amcf.org/H-1B_Visa.pdf.
(3) Having established Section 704 of the Administrative Procedures Act subject matter jurisdiction extends over matters springing from the Neufeld memo, the same court may also consider the validity of the Defensor dicta as "a preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action". In the alternative, a court may rule that the final decision of the USCIS or Administrative Appeal Office denying a particular visa petition is the sole reviewable action, while the Neufeld memo and Defensor dicta are underlying policy. The court would, nevertheless, still grant Administrative Procedures Act review pursuant to the final action requirement with consideration of whether the decision rendered was "arbitrary or capricious" under Section 706(2)(A) of the Administrative Procedures Act. That determination would, of course, necessarily involve consideration of the same factors of whether the agency's rules for adjudications, announced and unannounced, were consistent with statute and regulation.
(4) While it may be useful to delineate USCIS policy before and after the memo for technical reasons such as whether USCIS policy of approving similar cases was "definitive interpretation", placing such a contentious (and easily proven to be inaccurate) assertion in front of the court may not be the best foot forward for this class of applicants and those who may follow.
(6) See Nationwide Mutual Ins v Darden, 503 US 318 (1992). USCIS also cites a second Supreme Court decision, Clackamas Gastroenterology Associates, PC v Wells, 538 US 440 (2003), for the proposition that where the statute is ambiguous, an agency may apply a common law definition of control to 'fill a gap' in interpretation. However, neither Darden nor Clackamas dealt with agency interpretation of regulation, and a different set of Supreme Court case law applies to the deference that courts must show to an agency's interpretation of its own regulation. In addition, the Department of Homeland Security may well respond that its interpretation of ambiguity in its own regulation is owed deference under a high standard of deference consistent with an identifiable line of rulings within the DC Circuit. Furthermore, the government would also argue that the Neufeld memo is not reviewable under the Administrative Procedures Act as it is exempt from judicial review as interpretation under Section 553(b)(3). The plaintiffs' third count that Darden is "not applicable on its face" because the "regulation expressly defines the term" for H-1B employees assumes that the term is clearly defined in regulation, and the court may find that part of the argument to be less than compelling on its face, making it difficult to sustain count three on that basis.
(7) The court clarified Clackamas a year later in Yates v Hendon, 541 US 1, 124 S Ct 1330 (2004). In that case the court found a 'working owner' to qualify under the Employee Retirement Income Security Act as an employee, contrary to the common law definition, on account of the legislative history, language and interpretation of the act which:
"contains multiple indications that Congress intended working owners to qualify as plan 'participants.' Because these indications combine to provide 'specific guidance'… there is no cause in this case to resort to common law."(Yates at 12.)
However, the plaintiffs have neither cited Yates nor have identified "multiple indicators" that Congress intends a similar exemption under law for H-1B workers assigned as contract workers by staffing agencies.
(8) A measure has been submitted to the House as part of the 2010 Comprehensive Immigration Reform Bill that defines 'H-1B employment', with a similar measure pending in the Senate, and the new statute, if passed, would adopt the USCIS definition, legalizing the policy challenged. The 2009-10 House Comprehensive Reform (CIR) Bill, HR 4321, may be viewed as a 'poisoned pill' by many in the IT industry, specifically Chapter 1, Subchapter A, Sections 531(e) and 543, which would effectively ban outsourcing of H-1B workers. That section provides for the possibility of a waiver issued by the secretary of the Department of Labour. However, such a waiver would be contingent upon a showing that there have been no layoffs for 180 days before placement of the H-1B worker at a client site, and that outplacement would not result in the displacement of a US worker for 180 days thereafter.
Under Section 543, H-1B petitioners would also be required by law for the first time to demonstrate that they control and supervise their workers at client sites, and that the outplacement is not primarily an arrangement for hire, a bar similar to the ban on L-1B outplacement put in place by a late night addition to the 2004 Omnibus Spending Bill. If passed into law, this language would effectively nullify many of the grounds for a law suit against USCIS.
(9) The five-part definition of the 'employer-employee relationship' in current regulation is a broad and inclusive definition, consistent with what a line of leading US Supreme Court decisions say it should be: inclusive and not to stress any one particular element to the exclusion of the others. The court's Clackamas decision specifically endorses a similar six-part definition found in an earlier decision, Skidmore v Swift & Co, 323 US 134 (1944).
(10) Agencies may not abandon "prior, definitive" interpretations of their own regulations without first engaging in notice-and-comment rulemaking (Darrell Andrews Trucking, Inc v Fed Motor Carrier Safety Admin, 353 US App DC 113, 296 F 3d 1120, 1125 (DC Cir 2002)). An agency has, through years of practice, accepted a certain procedure or practice that is not based in published regulation. The agency issues a document declaring that it will no longer accept that practice. In such a case, the court may rule that document - even a press release announcing the change - must be published because it was not issued through Administrative Procedures Act rulemaking (Croplife America v Environmental Protection Agency 329 F3d 876 (DC Cir 2003)). An agency may not substantially deviate from existing definitive interpretation without publishing regulations (Alaska Professional Hunters Ass'n, Inc v FAA 177 F 3d 1030, 1035 (DC Cir 1999)).
(11) Rather, Darden was a civil law case that deals with ambiguity in statute and the question of the applicability of the common law definition of 'employee'. Clackamas is an administrative law case. It considered the standard of deference to be given to an agency's interpretative rulemaking, a policy manual used by the Equal Employment Opportunity Commission (EEOC), which applies a common law definition.
(12) In Clackamas, significantly, the court applied a less deferential standard found in Skidmore to affirm the common law definition as applied in the EEOC Compliance Manual. This is important to the outcome of this case because the standards of deference applied will largely determine whether the Neufeld memo survives scrutiny. In review of agency interpretative rules, judges in the DC Circuit apply either the highly deferential Auer standard or the less deferential Skidmore test endorsed in Mead.
(13) United States v Mead Corp 533 US 218 (2001) 185 F 3d 1304; cites Skidmore v Swift & Co 323 US 134 (1944) for a less deferential four-part test of informal agency interpretation and rules, according to "its consistency, formality, and relative expertness, and to the persuasiveness of the agency's position". This expresses the court's currently preferred post-Chevron deference standard for review of informal agency actions and rejects earlier highly deferential Auer decision by Justice Scalia.
(14) See, eg, Amoco Production Company v Watson 366 US App DC 215 410 F 3d 722 (DC Cir 2005), held that even though an agency's interpretative rule does not "have the force of law", it is given deference unless "plainly erroneous or inconsistent with the regulation". (Thomas Jefferson Univ v Shalala, 512 US 504, 512, 114 S Ct 2381, 129 L Ed.2d 405 (1994)).
(15) See Letter to Ms Roxana Bacon, chief counsel, USCIS, from AILA-USCIS HQ Liaison Committee, American Immigration Lawyers Association (January 26 2010), "Recent USCIS application of Nationwide Mutual Insurance Company v Darden, 503 US 318 (1992) and Clackamas Gastroenterology Associates, PC v Wells, 538 US 440 (2003) to nonimmigrant and immigrant visa petitions". AILA InfoNet Doc No 10012760 (posted January 27 2010). The letter observes, in relevant part [8-9]:
"Darden, Clackamas and Yates, taken together, stand for the proposition that where the meaning of the term "employee" cannot be determined or gleaned from the statutory scheme or from specific guidance found in the legislative history or the agency's historical interpretation of the term, the Court will turn to the common law definition UNLESS that common law definition would thwart Congressional intent or lead to an absurd result. This sets up a two part test: 1) a requirement to search for specific guidance respecting the meaning of the term "employee" under the INA, and 2) absent such specific guidance, a requirement to analyze whether application of the common law test would thwart Congressional intent or lead to an absurd result."
(16) See Amoco Production Co v Watson, 410 F 3d 722, 732 (DC Cir 2005); Centre for Auto Safety v NHTSA, 452 F 3d 798, 810 (DC Cir 2000); Devon Energy Corp v Norton, Civil Action No 04-CV-0821 (GK), 2007 US Dist. LEXIS 61709, August 23 2007 decided; affirmed by Devon Energy Corp v Kempthorne, 2008 US App LEXIS 25857 (DC Cir, December 23 2008)]
"In determining whether an agency action effectively "amends" a rule without adhering to the requirements of the APA, we must consider, inter alia, whether the agency officials involved in the disputed actions had the authority to issue binding regulations or otherwise act with the force of law on behalf of the agency."
See generally Harry T Edwards & Linda A Elliott, Federal Standards of Review - Review of District Court Decisions and Agency Actions 130-35 (2007).
(18) See, eg IQ Solutions v. Mayorkas, Civil Action No 09-890 (RMC) (DC Dist Ct, November 4 2009), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0890-8.
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