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Injunction to Halt USCIS’ February 2018 H-1B Policy Memo Denied

A group of eleven tech companies are suing the Department of Homeland Security arguing that USCIS’ February 2018 Policy Memo, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” exceeds the agency’s power because they issued the policy as a new rule without following required rule-making procedures.

The February 2018 memo stipulates that petitioners filing H-1B petitions involving third-party worksites must provide evidence of the beneficiary’s specific work assignments and evidence of their actual control over the beneficiary.

According to the tech companies filing suit, H-1B denial rates have skyrocketed since the memo was issued. They argue that the memo functions as a new rule even though it did not undergo the required notice-and-comment procedure.

These companies requested a preliminary injunction to halt the policy memo, but U.S. Magistrate Judge John Z. Boyle turned down the companies’ request, determining that the DHS has the “broad discretion to determine the terms and conditions for admitting nonimmigrants” including the discretion to require evidence of specific work assignments to properly evaluate the validity of an employer-employee relationship then the regulation, which serves “as an adequate basis for a majority of the 2018 memo’s directives.”

Read the Order denying the Motion for Preliminary Injunction here.