bigstock-Passports-31148August 27, 2010

This is the conclusion to a three blog series that detailed a lawsuit which was filed in the District of Columbia Federal court challenging the new H-1B Neufeld Memo. The first three blogs discussed the complaint that was filed in court, the motion for preliminary injunction that was filed by the Plaintiffs, and the response by Homeland Security. On June 8, 2010 five specialty businesses filed a lawsuit against the United States Citizenship and Immigration Services (USCIS) in response to the Neufeld Memo. The court analyzed the points that were made by both the Plaintiffs and the Defendants. This blog will focus on the final outcome of the case which for the dismissal of the case and finding in favor of USCIS.

Upon receiving and reviewing the details of the case, the court proposed to consolidate the hearing though a determination on merits based on the Federal Rule of Civil Procedure. On July 7, 2010 both parties submitted a joint agreement based on the courts consolidation proposal. At the Motions Hearing on August 5, 2010 both parties presented their arguments. A detailed review of both parties’ arguments can be found in the previous blogs. The main focus of the court was to determine whether or not the Plaintiffs had a substantial likelihood of success in their claims. The court’s final classification of the Neufeld Memo, whether it is a general policy or a legislative rule, impacted the outcome of the case.

A general policy statement is a rule or phrase that leaves an agency free to exercise its own discretion on a case by case basis. It is not final or binding in any way. Policy statements do not constitute or meet the criteria for judicial review. As a result, policy statements are exempt from having to follow the regulations of the Administrative Procedure Act (APA). In contrast, a legislative rule has “the force of law.” Congress gives regulated legislative power to the agency and the agency intends to use that power when the rule is established. A legislative rule is subject to the notice and comment requirements under the APA. Legislative rules are considered to be final agency actions because they “mark the consummation of the agency’s decision making process.” A rule that constitutes final agency action is subject to judicial review.

The court analyzed the case and issued an explanation along with the final decision. The focus of the court as stated was to determine whether or not the Plaintiffs have a substantial likelihood of success in their claims. In order for the case to proceed further, the Neufeld Memo would need to be classified as a legislative rule. The court explained that at the beginning of the Neufeld Memo, it is clearly stated that the intent of the document is to provide guidance when the USCIS is reviewing H-1B visa petitions. It was created using the common law principle of employer-employee relationship.

The court found that the memo provided interpretive guidelines that are not binding. Even with the addition of the memo, USCIS still has a wide range of flexibility when they are analyzing individual visa petitions. The court concluded that the Neufeld Memo is not a legislative rule. It is clearly a general policy statement that was intended to add clarity to the common law that is used to assess H-1B visa petitions. According the federal regulations, general policy statements do not constitute judicial review. As a result the case was dismissed. Unless this case is appealed, we are to expect that the new H-1B Neufeld Memo to be with us for sometime.