Trump Administration Cracks Down On H-1B Visa

Passengers wait to board a flight at an Airport in Bengaluru, India. (Photograph: Anirudh Saligrama/BloombergQuint)

The Trump administration has announced a new policy that tightens the procedure of issuing H-1B visas to those to be employed at one or more third-party work-sites, a move that will significantly impact Indian information technology companies and their employees.

Under the new policy, the company would have to go an extra length to prove that its H-1B employee at a third-party worksite has specific and non-qualifying speculative assignments in a speciality occupation.

The H-1B programme offers temporary U.S. visas that allow companies to hire highly-skilled foreign professionals, working in areas with shortages of qualified American workers.

Indian IT companies, which are among the major beneficiaries of H-1B visas, have a significant number of their employees deployed at third-party work-sites. A number of American banking, travel and commercial services depend on on-site IT workers from India to get their job done.

The new move announced yesterday through a seven-page policy empowers the U.S. Citizenship and Immigration Services (USCIS) to issue H-1B visas to an employee only for the period for which he/she has work at a third-party worksite.

As such, the issue of H-1B visas could be for a tenure of less than three years.

This would reverse the tradition of issuing the H-1B visas for three years at a time.

Effective immediately, the new guidance comes weeks ahead of the beginning of the H-1B visas filing season, which is expected to be April 2, for the American fiscal year 2018-19, which begins on October 1, 2018.

The guidance says in order for an H-1B petition involving a third-party work-site to be approved, the petitioner must show by a preponderance of evidence that the beneficiary will be employed in a speciality occupation and the employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.

While an H-1B petition may be approved for up to three years, the USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship, an official statement said.

Extensions of H-1B visas have become even tougher, in particular if the employee has been benched for any previous duration.

If an H-1B petitioner is applying to extend H-1B employment for a beneficiary who was placed at one or more third-party work-sites during the course of past employment with the same petitioner, that petitioner should also establish that the H-1B requirements have been met for the entire prior approval period.

U.S. Citizenship and Immigration Services

If these conditions are not met, and if the petitioner does not comply with the terms and conditions of the original petition and does not file an amended petition on time, USCIS may have eligibility concerns about a subsequent petition filed to extend the beneficiary's employment, the policy memorandum said.

Companies seeking H-1B visas for their employees working at a third-party site, would now have intensive paper-work to file before submitting their applications. This includes evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.

The letter should provide information, such as a detailed description of the specialised duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary's duties, and any other related evidence, the USCIS said.