Donald Trump’s 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 worksites. This move can significantly impact Indian information technology (IT) companies including their employees.
Under the new policy, the firm would have to go an extra mile to prove that its H-1B employee at a third-party worksite has specific and non-qualifying speculative assignments in a specialty occupation.
What is H-1B visa?
The H-1B programme offers temporary US 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 worksites. A number of American banking, travel and commercial services depend on on-site IT workers from India to get their job done.
The new guidelines
The new move announced on Thursday, 22 February, through a seven-page policy empowers the United States Citizenship and Immigration Services (USCIS) to issue H-1B visas to an employee only for the period for which he/she has worked at a third-party worksite. As such, the issue of H-1B visas could be for a tenure of less than three years.
Effective immediately, the new guidance comes weeks ahead of the beginning of the H-1B visas filing season, which is expected to be 2 April, for the American fiscal year 2018-19, which begins on 1 October 2018.
The guidance says 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 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.
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.
Sometimes American companies abruptly end the contract of an employee as a result the workers temporarily do not have any work, which in IT parlance is called on bench.
During this period, while they maintain their H-1B visas status, official investigations have revealed that foreign IT workers on H-1B visas do not get paid, which the USCIS says is illegal and abuse of the system.
If these conditions are not met, and if the petitioner did not comply with the terms and conditions of the original petition and did 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.
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