1. The memorandum is in violation of the Administrative Procedures Act (APA), which governs rule-making by government agencies and sets forth minimum procedures which must be followed by government agencies issuing new rules. The United States Citizenship and Immigration Services (USCIS) did not follow the procedures required by the APA when it unilaterally changed the requirements for an H-1B employer-employee relationship.
2. Though the intended target of the H-1B memorandum was clearly IT Consultants, its consequences extend far beyond the IT Consulting profession. For example, doctors in many circumstances would no longer meet the H-1B employer-employee requirements because many are employed by entities other than the hospitals in which they perform their day-to-day services.
3. The policies set forth in the memorandum will negatively impact H-1B employers and employees alike. The memorandum imposes evidentiary obligations that an H-1B employer may not necessarily be able to fulfill at the time of the petition, such as letters from the end clients in the context of IT Consultants. These requirements are extremely cumbersome and make it very difficult for H-1B employers to petition for legitimately needed H-1B employees.
4. The adjudication policies outlined in the memorandum will undoubtedly spread to other nonimmigrant visas and further the effects of this illegal rule-making. If the Neufeld Memorandum is not withdrawn, not only will such policies have an adverse effect on adjudications in the H-1B visa category, but will embolden the USCIS to continue illegal rule-making in other visa categories.
5. The Neufeld Memorandum introduces new factors to be considered when evaluating an H-1B employer-employee relationship. The current regulations define an H-1B employer as one which is "indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." The memorandum's employer-employee relationship requirements far exceed the scope of the current regulation.
6. The Neufeld Memorandum creates more confusion than clarity surrounding the requirements for an H-1B employer-employee relationship, especially because the memorandum contains internal inconsistencies regarding the requirements of employee control. The memorandum is riddled with contradictions regarding whether the legal standard is "actual control" or the "right to control" the H-1B employee.