USCIS Tightens Policy to Combat H-1B Visa Abuses

US Citizenship and Immigration Services (USCIS)

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Washington, DC – The US Citizenship and Immigration Services (USCIS) published a new guidance with clarifications on existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. The USCIS in its policy memorandum made clear that employers “must provide contracts and itineraries for employees who will work at a third-party location.”

The H-1B visa program generally allows a foreign employee to work for a specific sponsoring American employer. With the chances of changes in many employment situations, the location of work can change as well. To ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite, USCIS now published a policy memorandum making clear that USCIS may request detailed documentation in such cases.

The guidance, effective immediately (Feb. 22, 2018) explained that, in order for an H-1B petition involving a third-party worksite to be approved, the petitioner “must show by a preponderance of evidence that, among other things:

  • The beneficiary will be employed in a specialty occupation; and
  • The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.”

Details of Documents

Clarifying the existing regulatory requirements relating to H-1B petitions filed for workers who would be employed at one or more third-party worksites, the USCIS policy memorandum made clear that employers “must provide contracts and itineraries for employees who will work at a third-party location.”

Explaining the time periods of approval and subtle details, the USCIS stated that when H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition.

Noting that an H-1B petition may be approved for up to three years, USCIS reserves the right to (in its discretion) to 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.

USCIS said, “Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure US workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning.”

New Policy Aligns with Trump Guidelines

The updated policy guidance aligns with President Trump’s Buy American and Hire American Executive Order and the directive to protect the interests of US workers.

On April 18, 2017, the newly elected President Donald J. Trump signed the “Buy American and Hire American Executive Order,” seeking to create higher wages and employment rates for US workers and to protect their economic interests by rigorously enforcing and administering US immigration laws.

On the eve of the signing by President Trump in Wisconsin on April 18, two senior White House officials briefed journalists in the Brady Press Briefing room on background. Outlining the measures in the order, the officials said those would ensure that US workers who are just as qualified, willing and deserving to work in the relevant fields were not ignored or otherwise unfairly disadvantaged in the H-1B process.

Giving a glimpse into the President’s vision, the officials had said, “The President believes that the H-1B nonimmigrant visa program must serve the national interest. And he is taking action to ensure that it does.”

The USCIS has accepted the fact that the H-1B visa program helps US companies to recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country, but noted that many a times American workers, “who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.”

Reforms Not Dictated from Abroad

Contrary to the rumor mongering and fear-inducing reports in Indian media, these actions to reform the system are taken by the US government to get tough and stringent in approval of H-1B visas from this year. Indian government leaders, after a trip to the US or when meeting with their US counterparts, always give a statement that they had raised the subject of H-1B visas. However, these visas are at the discretion of the US government and the Indian government has hardly any say in the way these are allotted now, or curtailed in the future.

Even the White House can not change the present quota as USCIS has a Congressional mandate to issue 65,000 H-1B visas in the general category and another 20,000 for those applicants having higher education – masters and above – from US universities in the field of science, technology, engineering and mathematics.

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