Lawsuit Targets Additional Requirements on H-1B Workers

5/8/2018 

A group of IT staffing firms filed a lawsuit on Tuesday, May 1 in the US District Court for the District of New Jersey seeking a temporary restraining order (TRO) blocking enforcement of USCIS’s memorandum which imposes additional requirements on employers that place H-1B workers at third-party client sites. Nearly all of the three named companies’ H-1B employees need extensions in the next year, and they stand to lose their entire workforce. As such, they are seeking a TRO on the grounds that they will suffer irreparable harm if the TRO is denied.

The requirements in question were established on February 22 and require employers seeking placement of H-1B workers at third-party sites to provide evidence that the employer maintains the right to control its employees in the form of “specific and non-speculative” assignments that cover the entire requested validity period of up to three years. The lawsuit alleges that by imposing such a stringent demand only on employers seeking third-party placement, DHS has “excluded” such employers from the H-1B program. Jonathan Wasden, one of the attorneys in the case, noted that this imposition threatens staffing companies’ ability to remain competitive by being flexible and being able to move employers to different client sites. Speaking to Bloomberg BNA, he stated: “If you’re a business owner, the whole point is you’re always trying to get more business and that’s going to require you to be nimble.”

Other litigation against the Trump administration’s immigration policies so far include a lawsuit resulting in a court order directing USCIS to implement the Immigrant Entrepreneur Rule and a lawsuit resulting in a preliminary injunction ordering the protection of safeguards against deportation for DACA recipients.

Our office will continue to monitor developments and provide updates. The case is Small and Medium Enterprise Consortium, Inc. v. Nielsen.