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IT staffing firms file suit over new H-1B rules

Federal lawsuit contends that immigration service overstepped its authority with oversight memo

June 9, 2010 01:55 PM ET

Computerworld - WASHINGTON D.C. -- IT staffing firms that rely heavily on H-1B visa workers to deliver their services say they are now in a fight for survival due to new rules created by the U.S Citizenship and Immigration Services (USCIS).

The industry has reacted quickly.

Three IT staffing firms, which hire H-1B workers as software engineers, developers and analysts, have joined with TechServe Alliance, an Alexandria, Va.-based IT services industry association, to file a lawsuit challenging a USCIS memo released early this year which requires that the companies maintain direct control of employees assigned to third party worksites.

The requirements of the memo are antipathetic to the business model of staffing firms, which may not necessarily be able to maintain day-to-day oversight of a temporary worker's assignments. Critics say the USCIS action is a direct result of pressure from some in Congress to limit the use of H-1B visas.

Visa workers make up as much as 90% of workers assigned by the staffing firms involved in the lawsuit, filed in federal court here.

The lawsuit says the USCIS actions could cost the IT staffing industry some $100 million in business annually.

The firms that joined TechServe in filing the lawsuit are: Broadgate, Inc. in Troy, Michigan, which counts 21 H1B visa holders among its 46 IT workers; Logic Planet, Inc., in Edison, N.J., which employees 95 IT workers, including 89 on H-1B visas; and DVR Softek Inc., also in Edison, N.J., which says that 45 of its 50 tech workers hold H-1B visas.

The group is seeking an injunction that would prevent the USCIS from enforcing the memo.

Over the past year, the USCIS has increased enforcement of the H-1B program through on-site inspections and new rules seeking increased paperwork from firms to justify their use of foreign workers.

But what really angered much of the staffing industry was the so-called Neufeld Memo, written by an associate director at USCIS, Donald Neufeld, that opponents contend upended the rules for H-1B workers assigned to third party work sites.

Technology industry companies use H-1B workers in a number of ways.

Some are hired by major companies like Microsoft or Google as staff employees. Large offshore firms, including Infosys and Tata Consultancy Services, hire H-1B workers to complete customer outsourcing projects and to work with overseas operations. And small and mid-size firms often hire H-1B workers to fill specific needs at third party customer sites for projects that may take less than a year -- similar to traditional temporary employment processes.

The Neufeld memo requires that management at staffing firms maintain day-to-day control of employees assigned to third-party sites. Critics contend that the ruling overlooks the right of staffing agencies to hire, fire and pay as well as supervise some elements of the work completed by the H-1B worker at a third party site.

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