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Old 08-16-2010, 02:36 PM
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Default USCIS wins lawsuit over Employer Employee memo

Update on the Broadgate Lawsuit – H-1B issues. Business Immigration Law – Global, US, Canada

From Murthy law firm.

MurthyDotCom : NewsFlash! Challenge to Employer-Employee Memo Dismissed
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Old 08-16-2010, 03:05 PM
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This will be a major blow for the IT consulting business model.
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Old 08-16-2010, 03:10 PM
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The court concluded that the Memorandum does not constitute final agency action subject to judicial review and the notice and comment requirements under the APA. The court concluded that the Memorandum establishes interpretive guidelines for the implementation of 8 C.F.R. 214.2 and does not bind USCIS adjudicators in their determination of plaintiff’s H-1B visa applications.

Does this mean this memo is not legally binding to USCIS adjudicators ?
Is it a victory in disguise for plaintiffs ?

If I remember correctly, the lawsuit was that USCIS did not follow proper rule making procedures.
Court says rule making need not be followed as this memo is not legally binding.

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Old 08-16-2010, 03:17 PM
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The court is saying that since this is a non-binding memo; the court does not need to judge whether or not the USCIS definition of an employer employee relationship is valid or not.

It just means that H1B petitions that have denied based on the 'control' issue can be appealed presumably. But this might only be an option for large IT companies; which is probably what the USCIS knew and planned for all along. I think the goal of the USCIS is to apply this memo selectively against the smaller Desi consultancies.

Last edited by venky321; 08-16-2010 at 03:20 PM.
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