bigstock-Immigration-Rally-in-Washingto-7293710August 19, 2010

This is the third of a three blog series reviewing a lawsuit that was filed with the District of Columbia Federal court challenging the Neufeld Memo. The first and second blogs focused on the Plaintiffs’ complaint and the request for a preliminary injunction. This blog will detail Homeland Security’s response to the lawsuit as well as responding to the claims asserted by the Plaintiffs. On June 8, 2010 five specialty businesses filled a lawsuit against the United States Citizenship and Immigration Services (USCIS). The Defendants were given until June 25, 2010 to respond in opposition to the Plaintiff’s request for a preliminary injunction. The Defendants (USCIS and Homeland Security) structured their argument focusing on the technical aspect of the law suit.

In their opposition, the Defendants highlight the specific points that they would like the court to consider when deciding whether or not to grant the preliminary injunction. First, they asked the court to consider the Plaintiffs likelihood of success in their claims. The Defendants argue that it is impossible for the Plaintiffs to show a substantial likelihood of success due to the nature of the challenge. The Plaintiffs argue that the policy change that appeared in the Neufeld Memo was not subject to the comment and rulemaking requirements of the Administrative Procedure Act (APA). The Defendants contest that the changes that occurred were simply a set of flexible guidelines that were intended to assist agency workers as they assess H-1B applications. As a result, the APA standards do not even apply to the Neufeld Memo. Second, the Plaintiff asked the court to take into account whether the Plaintiffs will suffer irreversible injury if the preliminary injunction is not granted. The Plaintiffs alleged harm alleged is speculative.

For this reason, the inability to prove that irreversible harm means that this case is not urgent and does not warrant a preliminary injunction. Third, they asked the court to examine if the injunction will have a negative impact on USCIS. The Defendants state that the intent of the Neufeld Memo was to formulate a guide or reference for the agency when H-1B visa applications are being reviewed. In the past, there had been confusion in defining and interpreting the employer-employee relationship. The Defendants believe that issuing a preliminary injunction would stall the need to clarify and further refine the process of interpretation. Finally, they asked the court to consider if granting an injunction will further public interest. The Defendants assert that issuing a preliminary injunction will harm public interest because the public will be deprived of useful and clear information regarding the USCIS regulation. Without the Neufeld Memo, the public will not know what guidelines the USCIS uses for issuing H-1B visas, they state.

The main point that the Defendants highlight repeatedly in their opposition to the Plaintiffs’ claims involves whether the Plaintiffs have a substantial likelihood of success in their APA claims to block the injunction. In this case, the Defendants argue that the Plaintiff’s interpretation of the Neufeld Memo is incorrect. The APA requires that agencies follow the notice and comment procedures when they are changing legislative rules. However, the Defendants state that the APA requirements do not apply to the Neufeld Memo because it is not a legislative rule or a final action. The Neufeld Memo is not final because a small business has options if an H-1B visa application is denied.

They can file a new application or they can complete a Notice of Appeal with the Administrative Appeals Office (AAO). The APA exempts interpretive rules, general policy statements, or rules that deal with agency procedures. According to the Defendants, the Plaintiffs are challenging an agency policy memorandum not a final agency action. The main point in the Defendants’ opposition to the lawsuit revolves around this one point. A preliminary injunction cannot be granted if the Plaintiffs do not state a cause of action or a substantial likelihood of success in the claim. As a result, the request for the injunction should be void because the structure and intent of the Neufeld Memo exempts it from APA requirements.