AILA Brief of Amicus Curiae in Michigan Case

The American Immigration Lawyers Association submitted a brief of amicus curiae in a case in Michigan concerning the ability of an information technology staffing company to offer permanent employment to a qualified foreign national for assignments in the U.S., including long and short-term contract employment at the company’s client sites, in a position where U.S. workers were determined by the U.S. Department of Labor to be in short supply.

AILA submitted a brief to provide background information and legal context regarding the immigration issues presented in this case, and to offer arguments with regard to the specific issues of who qualifies as an employer for the purpose of filing a petition for permanent employment under the Immigration and Nationality Act, and whether the agency decision is entitled to this Court’s deference, as raised by the parties.

AILA stated that staffing companies and contract employers are significant suppliers of workers in critical areas of health care, nursing, physical and occupational therapy, engineering, computer science, business analysis and other fields in need of professionals in shortage areas. The determination by the defendants that the petitioning employer in this case is not a bona fide “employer” within the meaning of the Immigration and Nationality Act (“INA” or “the Act”), is thus of great importance to many other prospective employers, some of whom could be forced to close their businesses, and also to talented highly trained foreign nationals who regard America as a land of opportunity.

AILA’s Summary of Argument from the brief is provided below:

The United States Citizenship and Immigration Service’s (“USCIS”) exclusive focus on the day to day control of an employee’s work assignment to determine whether a petitioner is an “employer” for purposes of the Immigration and Nationality Act effectively excludes a critical source of American jobs for U.S. employers around the country who need workers to perform services that the U.S. Department of Labor (“DOL”) has certified are in short supply.  For the reasons set out below, AILA requests this Court to reject the USCIS position that an employer must retain day-to-day control of its employee at a third-party client site.

First, USCIS lacks statutory authority to make such an interpretation. The statute and regulations delegate exclusive authority to the DOL to determine whether the job offer is bona fide or will undermine the terms and conditions of employment for qualified U.S. workers under the statute. Hence, the determination of who is an employer is exclusively DOL’s, not USCIS’s, prerogative.

Second, even if USCIS were to possess such authority (which it does not), the USCIS interpretation is inconsistent with the plain meaning of the terms “employer,” and “employment,” as used in the statute and in the implementing regulations of the DOL and the Department of Homeland Security (”DHS”), the agency in which USCIS is located. USCIS’s control analysis contravenes both DOL and DHS regulations that implement the INA’s employment-based immigration program. Moreover, it overlooks a staffing company’s role as an employer that retains the authority to identify and select qualified persons, hire them, place them on its own payroll, provide job benefits, assign them to locations it determines will meet its clients’ staffing needs, provide oversight, supervision (including shared supervision), training and other support to them, reassign them as may be needed or desired, and retain ultimate control over their employees’ assignments and continuing employment. These employers offer permanent employment to the prospective foreign national employee.

Third, even if the statute authorized USCIS to determine whether a particular job offer constitutes “employment” under the INA, the agency’s reliance on a common law definition of the employer-employee relationship is misplaced. It derives from Supreme Court cases that have nothing to do with job offers or authorization of foreign nationals to be employed in the U.S. in shortage occupations. The INA and its governing regulations, including those of both DHS and DOL, adequately define employment in ways that recognize such employment, and thus conflict with the USCIS’s approach. But even if reference to the common law definition were deemed to be relevant, the USCIS applies the common-law definition incorrectly, thus reaching the wrong conclusion about whether a staffing company is an employer under the Act. In addition, the USCIS ignored binding precedent decisions of the Department of Justice interpreting the terms “employer” and “employee” that conflict with the USCIS’s ad hoc and novel interpretation in this matter.

For all these reasons, the agency decision in this matter is not supported by law. The USCIS’s interpretation of what it construes to be “bona-fide” employment would leave all employers who send employees to third- party locations uncertain whether they retain an adequate degree of control for purposes of sponsoring foreign workers. Such an outcome would discourage the use of the employment-based visa categories that Congress created to promote American economic growth, and thus would contravene the purposes of the INA. AILA respectfully submits that this Court should hold that, once the DOL has certified a position on behalf of an intended employer and employee, the USCIS is bound by that determination and has no authority to second guess it.

AILIA concluded that USCIS lacks authority to define “employer” or “employment” when adjudicating employment-based immigration petitions, has adopted an interpretation of those terms that is inconsistent with the plain meaning of the INA and controlling regulations, or is an unreasonable interpretation of the INA’s terms; and also ignores binding agency precedent in favor of an untethered and incorrect reliance on common-law concepts. AILIA requested that the Court reject USCIS’s interpretation of the term “employer” and in particular the control analysis justifying the USCIS decision in the case.

Source: AILA InfoNet Doc. No. 12100844. (Posted 10/08/12)