Third party workers applying for H-1B visas will now have to prove they are employed in a specialty profession, and employers will have to provide proof of employment
In a move that will impact Indian technology workers, the agency that handles lawful migration in the United States, has said in a policy memo that third party workers applying for H-1B visas will now have to prove they are employed in a specialty profession, and employers will have to provide proof of employment.
The US Citizenship and Immigration Services said in a policy memo on Friday that to establish eligibility for an H-1B petition involving third party worksite, the employees will have to prove they are “employed in a specialty occupation. This means the petitioner has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition."
It further said, “The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period."
The memo noted: “Based on the agency’s experience in administering the H-1B program, USCIS recognizes that significant employer violations—such as paying less than the required wage, benching employees (not paying workers the required wage while they wait for projects or work) and having employees perform non-specialty occupation jobs—may be more likely to occur when petitioners place employees at third-party worksites.”
Industry body National Association of Software and Services Companies said the policy memo seems at odds with the US administration’s efforts to reduce regulation and red tape.
“This will be an unnecessary and expensive paperwork burden that will not make much difference,” said Nasscom, while adding that it is still assessing the final impact of the move.
It further said that its member companies “have demonstrated time and time again in routine audits that as sponsoring employers they clearly maintain control over, and relationship with, their visa holders and that the person remains a specialty occupation worker as is routinely demonstrated by the fact that extensions are granted.”
Some people see the move primarily impacting “body shops”, or IT companies that farm out people to overseas locations on the pretext of giving them employment in foreign locations, others believe that the move will impact even large technology companies.
“The US has been talking of this since some time now,” said an industry expert who did not wish to be named. “The move will increase scrutiny for visa applications even further,” he added.
Bodyshopping has been an issue that has plagued the IT industry for a long time, whereby consulting firms recruit and subcontract skilled foreigners to major technology firms in the US.
Many of these firms skirt the law and are often called “body shops”.
“The memo applies not only to these companies that have abused the H-1B system, but the blanket policy also applies to several highly regarded IT companies and staffing agencies that have no prior record of any H-1B violations,” said Rajiv Dabhadkar, founder of National Organization for Software and Technology Professionals.
The H-1B work visas, essentially allow highly skilled foreign workers to travel to the US, and have been at the centre of a storm since US President Donald Trump’s presidential campaign last year. His “Make America Great Again” slogan took off in a big way, and he often mentioned H-1B visa regime as one of the things he would want to change.
Friday’s memo is a part of the deliberations under an executive order Trump signed last year, called “Buy American and Hire American” in which he tasked the US Secretary of State, Attorney General, Secretary of Labor, and Secretary of Homeland Security “to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.”At present, the US has a cap of 65,000 visas for the general category under H-1B visas and allows a further 20,000 people who have a US master's degree from an accredited institution to also apply. The visas are awarded on a lottery-based system, to randomly select the petitions.