The January 8, 2010 memorandum (the Memorandum), issued without forewarning or delayed effective date by United States Citizenship and Immigration Services (USCIS), continues to roil the immigration waters where U.S. businesses must try to fish.  I've written time and again on the Memorandum, focusing upon the death knell it rings for entrepreneurs who hold majority or greater stakes in start-up and emerging companies (Working Owners), and decrying its novel and unexplained decision to reexamine the factors required to establish an acceptable employer/employee relationship.

The Memorandum's harmful effects are no less damaging, however, to important sectors of the U.S. economy, as I noted in Wednesday's New York Law Journal  "Immigration Column," co-authored with Ted Chiappari.  In "New USCIS Policy Clips Entrepreneurs, Consultants and Staffing Firms," (provided courtesy of IncisiveMedia, the copyright holder), Ted and I also focus on the painful blowback the Memorandum will inflict on businesses in the staffing and consulting industries. 

Staffing companies, dubbed pejoratively by the USCIS as "Job Shops," but actually providing real value to American businesses, will effectively be put out of business if the Memorandum is not withdrawn. Consulting enterprises, if not wholly barred from conducting business by the Memorandum, will nonetheless be required to (a) supply voluminous confidential documentation that will likely cause impairment to their client relationships, (b) apply more frequently than ever before for costly H-1B petition renewals, and (c) expect that petition extension requests will be scrutinized closely for any prior acts of perceived misbehavior and that the recent spate of site visits and port-of-entry interrogations will continue unabated. 

Also troubling is the recognition that the inflicted damage is not limited to the H-1B visa category.  The Memorandum's unconvincing legal reasoning is replicated and applied to other employment-based immigration categories in recent USCIS Administrative Appeals Office rulings that make it much harder for a petitioning "employer" to gain USCIS's permission to hire an "employee."

The few remaining Pollyannas among immigration stakeholders may not yet be crestfallen but others should beware. USCIS clearly intends to persist in the types of intrusive micro-management of U.S. business operations described above.  Witness the recent change in the boilerplated wording of Form I-797 approval notices:

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

USCIS also proposes to add new burdens on the all-purpose work-visa petition that employers must complete, the Form I-129, if the Office of Management and Budget approves revisions to the form and its instructions.  (For comparison charts that note the respective changes, click here:  form-changes chart and instruction-changes chart.)  As you will see, a number of new, difficult and burdensome questions are asked about deemed-export licensing requirements (a complex substantive area of law distinct from immigration), J-1 history, third-party worksites and acknowledgment of potential site visits.  Despite these new questions, USCIS's supporting statement does not expressly alert the Office of Management and Budget (OMB) that such significant changes are added. 

These changes, despite USCIS's protestations to the contrary in its supporting statement, will significantly and adversely affect small businesses, because, as noted in past links cited above, they will deny working owners the chance to receive work visas and green cards. The changes, taken together with the new interpretations in the Memorandum, will also likely cause the Memorandum to meet the test for a "significant guidance document" requiring prior notice and an opportunity for public comment under the OMB's Bulletin for Agency Good Guidance Practices (GGP). 

In relevant part, a good guidance document is "significant" if a policy memo that is disseminated to "regulated entities or the general public" involves an "interpretation of a statutory or regulatory issue" that "may reasonably be anticipated to:"

• Lead to an annual effect on the economy of $100 million or more or
• [A]dversely affect in a material way the economy, a sector of the economy, productivity, competition, [or] jobs, [or] . . .
• Raise novel legal or policy issues arising out of legal mandates . . .

All three bulleted tests for a "significant guidance document" under the GGP are satisfied by the Memorandum.  As the USCIS supporting statement acknowledges, the costs alone of the changes to Form I-129 entail an effect on the economy of "$122,415,360" without regard to the costs involved in complying with the Memorandum's burdensome evidentiary demands.  Moreover, the adverse material effect of the Memorandum on two job-creating sectors of the economy (the staffing industry and small-business entrepreneurial enterprises) is obvious. And undoubtedly, the Memorandum raises novel legal and policy issues arising out of the interpretation of the statutory and regulatory terms, "employ," "employed," "employer," "employee," and "employment" that are legal mandates for eligibility to receive employment-based petition approvals under the Immigration and Nationality Act.

USCIS need not have stirred up these previously peaceful waters by its unjustified reappraisal of the employer-employee relationship.  The agency should now calm the waters by withdrawing the Memorandum.  If changes are warranted, then USCIS should either propose a regulation and allow prior public notice and comment or at least satisfy the comparable requirements imposed on it by the OMB's good-guidance requirements.  Good governance and the rule of law demand no less.