H1-B for Third-Party WorkSites Gets Tougher

Posted on February 23, 2018
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Man worried about H1-B for third-party work sites getting tougher

The Buy American, Hire American thought wave is sinking its teeth further into the H1-B community by tightening the noose around the documentations required to justify the legitimacy of the employer-employee relationship when the employee may be located in a third-party work-site. The Trump administration is determined to put its money where its mouth is and has demanded that all prospective H-1B applicants going to be working at a third-party worksite have specific and non-qualifying speculative assignments in specialty occupation. This would mean more tedious paperwork, lot more Request for Evidences (RFEs), longer delays and most of all, higher rate of rejections.

H1-B visa program is a work-related non-immigrant visa issued to foreign workers who come to the US temporarily on a professional assignment. The location could either be the US sponsor’s job site or a third-party location depending upon where the US employer needs work done. In that case, the United States Citizenship and Immigration Services (USCIS) has regulated that the employers will have to provide contracts and itineraries for employees who will work at a third-party location. They will also have to have aggressive documentation proving that during this time the employer-employee relationship is maintained. The two elements under scrutiny will be –

  • Specialty Occupation:The job for which the foreign worker is granted the H1-B visa should be specific in nature and fall under the STEM category to qualify.
  • Employer-employee relationship: At times when the project may get completed before the visa expires or if it got prematurely terminated, the H1-B visa holder may be asked to remain “on the bench” unpaid until they can be placed on another project. This would be discouraged and all workers return to their parent country once the project is completed.

This would mean that USCIS will now limit the time the H1-B visa is granted for. They would now consider the work at hand and evaluate the time allowed in the US based on the duration of the project itself. Traditionally it was automatically first granted for a period of three years, extendable by another three. Extensions, too will be hard to come by. The US employer will have to ensure strict compliance with the terms and conditions of the original petition or file an amended petition in a timely manner else face rejections.

Effective immediately, this comes just as companies are busy preparing for the fast approaching H1-B visa application deadline of April 2, 2018 when they can submit their names in the lottery system. This covers a gamut of banking, travel and commercial industries depending upon Indian IT firms. While the existing process was a long one anyway, now these lottery entrants will have to furnish their applications with a lot more information to justify their eligibility.

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