Broadgate, Inc.,et al v. USCIS, the legal action challenging the January 8, 2010 CIS memo on the subject of third party placement of H1B employees. On Friday, the US District Judge hearing the case dismissed it.

The judge concluded that the CIS memo was not a "rule" in that CIS adjudicators are not bound by it. As such, it does not constitute final agency action and is not subject to judicial review.

It is unclear whether the plaintiffs will appeal this decision. We certainly hope they will. If there is even a single CIS adjudicator who does not regard this "interpretive memorandum" as binding, I'd be shocked. This thing is as final as any rule can be.

Petitioners may still challenge denials of H petitions in federal court if the denial either references the January 8th memo, or incorporates the arguments found in it as a basis for the denial. The CIS remains highly vulnerable in that regard.

The good news is that in the wake of the firestorm of criticism of this memo, the Director of the USCIS appears ready to consider withdrawing it.