Trump Admn cracks whip on H1B Visa, Indian techies to pack up sooner than before

Unlike the expectations, the Trump administration has finally cracked the whip on H1B work visa rules making it difficult for the ‘friendly-nation’ India’s passport holders, especially IT employees, who may find it just impossible to turn them into Green Cards now.

The changes announced in a memo issued by the US Citizenship & Immigration Services on Friday, February 22 makes it twice as difficult to get H1B work visa and also making it impossible to get an extension. Earlier, H1B visas were issued for a period of three years and on supplementary questioning, it may be extended by another three years.

The latest changes makes it mandatory for the companies to share the details of work nature for full three years and if it is for 2 years or less, then the visa will be issued only for that specific period.

In case of extension, it has become necessary for the companies to share every detail. So, failing to get any extension, now the H1 B visa holder should return home earlier than expected.

“Scenarios involving a third-party worksite generally make it more difficult to assess whether the petitioner has established that the beneficiary  will actually be employed in a specialty occupation or that the requisite employer-employee relationship will exist,” said the memo categorically. It has further cited the situations when this assessment has become difficult, such as:

Currently, while determining whether an employer-employee relationship exists, adjudicators should go by the Employer-Employee Memo, published on January 8, 2010, for guidance.

In the “vendor” concept, frequently referenced in H-1B petitions in the information technology (IT) industry, the memo noted that the terms are not precisely defined as petitions commonly refer to “primary vendors,” who have an established or preferred relationship with a client, or “implementing vendors,” who bid on an IT project with a client and then implement the contract using their own staff.

Primary vendors ask secondary vendors to fill staffing needs on individual projects. [See, e.g., Acclaim Systems, Inc. v. Infosys, No. Civ.A. 13-7336, 2016 WL 974136 at *2 (E.D. Pa. Mar. 11, 2016)]. As a result, the ultimate client project may be staffed by a team of H-1B beneficiaries who were petitioned for by different, unrelated employers.

Based on the agency’s experience, USCIS said 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.

In order to protect the wages and working conditions of both U.S. and H-1B nonimmigrant workers and prevent fraud or abuse, the agency said the new policy seeks to ensure that officers properly interpret and apply the statutory and regulatory requirements that apply to H-1B petitions involving third-party worksites.

It said when a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. The petitioner  will be required to show that:
• The petitioner has a specific work assignment in place for the beneficiary;
• The petition is properly supported by a Labor Condition Application (LCA) that corresponds to such work; and
• The actual work to be performed by the H-1B beneficiary will be in a specialty occupation based on the work requirements imposed by the end-client who uses the beneficiary’s services. [See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000)].

USCIS further said the H-1B petitions do not establish a worker’s eligibility for H-1B classification if they are based on speculative employment or do not establish the actual work the H-1B beneficiary will perform at the third-party worksite.

The companies which regularly place their workers at third-party worksites often submit uncorroborated statements describing the role at the third-party worksite. “Such statements by the petitioner, without additional corroborating evidence, are often insufficient to establish by a preponderance of the evidence that the H-1B beneficiary will actually perform specialty occupation work,” it said.

For such third-party, off-site arrangements, additional corroborating evidence, such as  contracts and work orders, may substantiate a petitioner’s claim of actual work in a specialty occupation, said the memo. “In all instances, the petitioner’s burden of proof is to establish that the H-1B beneficiary will be employed in a specialty occupation and that the petition is properly supported by an LCA that corresponds to the actual work the beneficiary will perform. If the petitioner does not submit corroborating evidence or otherwise demonstrate that there is a specific work assignment for the H-1B beneficiary, USCIS may deny the petition,” it noted.

In addition to contracts between the petitioner and its client for that worksite, the petitioner may be able to demonstrate that the beneficiary has actual work assignment(s) in a specialty occupation by providing evidence such as:
• Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
• Copies of relevant, signed contractual agreements between the petitioner and all other companies involved in the beneficiary’s placement, if the petitioner has not directly contracted with the third-party worksite.
• Copies of detailed statements of work or work orders signed by an authorized official of the ultimate end-client company where the work will actually be performed by the beneficiary. The statement should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked.
• A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The letter should provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and contracts as evidence to demonstrate the validity.

Itinerary as a regulatory requirement

The H1B petitioners are required to file an itinerary with a petition that requires services to be performed in more than one location. The itinerary must include the dates and locations of the services to be provided. The prior Itinerary Memo’s allowance of general statements, as opposed to exact dates and places of employment, seems to have been incorrectly
interpreted by some adjudicators, and some members of the general public, as excusing the petitioner from having to submit an itinerary, as required by 8 CFR 214.2(h)(2)(i)(B).
There is no exemption from this regulatory requirement. An itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. The itinerary should detail when and where the beneficiary will be performing services. Adjudicators may deny the petition if the petitioner fails to provide an itinerary, either with the initial petition or in response to a Request for Evidence.4

Itinerary as evidence requires “the dates and locations of the services to be provided when the petition requires the beneficiary to work at multiple worksites, a more detailed itinerary can help to demonstrate that the petitioner has nonspeculative employment, even when the beneficiary will only be working at one third-party worksite. For instance, it could help USCIS determine whether there are specific and nonspeculative qualifying assignments if the petitioner submits a complete itinerary of services or engagements that specifies:

• The dates of each service or engagement;
• The names and addresses of the ultimate employer(s);
• The names, addresses (including floor, suite, and office) and telephone numbers of the locations where the services will be performed for the period of time requested; and
• Corroborating evidence for all of the above.”

Referring to trade secrets, it is critical that the redacted document contain all information necessary for USCIS to adjudicate the petition. Although a petitioner may always refuse to submit confidential commercial information if it is deemed too sensitive, the petitioner must also satisfy the burden of proof and runs the risk of a denial. [Cf. Matter of Marques, 16 I&N Dec. 314, 316 (BIA 1977).]

While an H-1B petition may be approved for up to three years, 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 that the petitioner will maintain the requisite employer-employee relationship, as documented by contracts, statements of work, and other similar types of evidence. 8 CFR 214.2(h)(9)(ii)(A) and (iii).

Extensions

In addition to the above elements that apply to all H-1B third-party worksite petitions, if an H-1B petitioner is applying to extend H-1B employment for a beneficiary who was placed at one or more third-party worksites during the course of past employment with the same petitioner, that petitioner should also establish that the H-1B requirements have been met for the entire prior approval period.

This includes establishing that the beneficiary worked in the specialty occupation, that he or she was paid the required wage, and that the employer maintained the right to control the beneficiary’s employment. 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.5

“If the terms and conditions of the initial approval period were not met and the petitioner has demonstrated eligibility for the subsequent petition, the extension petition may be approved,” said the memo.

Reaction

The Indian IT association Nasscom is up in arms as usual and its president R Chandrasekhar said the new paper work would make it impossible for an immigration officer to establish the connections between qualifications and tasks, with utmost subjectivity.

“The implication of this is there will be a lot more paperwork. A series of executive orders have been coming out. Each one by itself may not be much, but they have cumulatively added up to making it much more difficult and onerous for companies to use the H-1B route,” he said in a statement.

The new policy seeks additional evidence such as more details in the work orders or in letters from the end client regarding the beneficiaries’ work assignment. It seeks USCIS to ask for more evidence regarding the specific nature of the H-1B worker’s work now.

Nasscom vice-chairman Rishad Premji said that Indian IT firms use less than 20% of the 65,000 H-1Bs issued each year. Chandrasekhar said “in the last two years, the number of visa applications filed by Indian IT firms dropped by 50%”.

Chandrasekhar said the shortage of STEM (science, technology, engineering and math) workers in the US would further create a void. However, Indian IT companies have been recruiting more locals in the past two years and the trend may continue.