Monday, March 29, 2010

Notes from the USCIS Session on Neufeld Memo

On Friday March 26, MU’s Cindy Unkenholt attended the USCIS’ listening session on the application of the Neufeld Memo for the Healthcare industry. MU’s Chris Musillo participated telephonically.

The USCIS was represented by several high-ranking officers including General Counsel Roxie Bacon and Barbara Velarde, Chief Service Center Operations. Oddly, Donald Neufeld, the author of the Memo, did not participate in the session.

Ms. Bacon pointed out that the approval rate for Therapists was unchanged since the publication of the Memo on January 8, 2010. This implies that the fears that the Memo would increase denial rates are overblown.

Other key points were raised by the attendees included,

- That the definition of employer-employee is established in the Memorandum. In conversations that I have had with multiple AILA attorneys all are confident in this position. USCIS did not comment on the legality of this definition. AILA spells out most of this argument in their recent letter.

- Co-employer. The USCIS seems to be taking the position that it must choose the "best employer" (either Staffing Co. or Facility). This is not how the law is to be applied in this area. Instead, the USCIS is only to analyze and see if the Petitioner has the right to control. Multiple parties (both Staffing Co. and Facility) can have a right to control. This is the legal foundation behind the co-employer doctrine, which has a long basis in law. Indeed, the DOL's own regulations contemplate co-employer doctrine in the FMLA regulations. See, e.g. 29 CFR 825.16.

- Burden of Proof. The Service has a policy on burden of proof. The policy is this: If the petitioner submits relevant, probative, and credible evidence that is more likely than not to be true, the USCIS must approve the case. All too often USCIS officers are not applying this standard or just paying lip-service to it.

- Expansion of the Neufeld Memo. There is also concern that this Memo is going to serve as the basis to be expanded to I-140's, etc. USCIS didn't even side-skirt the issue. Ms. Bacon implied that the USCIS will look to expand the logic behind the Memo in future Memos.

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