H1-B Petitioners Have To Prove Availability of Future Work To Qualify for Work Visa

Another way for USCIS to crack the whip on H1B workers is by insisting that employers first prove that there is sufficient work for the entire three-year term of the visa. While in most cases this seems hard to prove, it also seems unnecessary for in-house employees who can be shuffled between projects according to policy.

Although a standard practice to expect statements of work, vendor agreements, and a list of projects, etc. from third-party placement and staffing companies, it is unreasonable to expect the same from H1-B employees working at their own employer locations since their tasks are fluid and change priorities as it progresses.

This is particularly frustrating for the tech companies who are heavily reliant on foreign skilled workers. Other industries who might also be affected with this is the accounting and health are industries. The employees are face such questioning through the huge number of Request for Evidence (REFs) that are being issued lately. USCIS uses RFEs to evaluate petitions and asks employers to justify their need for the specific employee and thus, prove that there may or may not be work for the entire duration of the H1-B tenure. The need for vendor agreements and lists of projects seem to just drag the adjudication rather than expedite it.

These hard-to-win-RFEs are causing indefinite delays since employers are practically unable to forecast a definite work schedule for their foreign workers for the entire three-year period. Besides this, the business costs attached to not having the employee report to work based on project deadlines is causing huge losses for the industries.

What is the Outcome?

While a lot of the petitions are yet to see a final resolution, either before or after the issue of the RFE, USCIS is adjudicating some of the H1-B petitions but for a shorter duration than the standard three-year period. Again, these short-term approvals are based on the employer’s ability to prove the amount of work available. These can range anywhere between six months to two years and is applicable more to third-party locations than employer sites.

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Given that it is already a requirement for petitioners to provide evidence regarding work hours, schedules and load it seems apt for third-party site employees to provide such information. However, since in-house employees are required to be paid for the time they may be waiting for work, this policy shouldn’t apply to them, contend some immigration lawyers.