U.S. Citizenship and Immigration Services is imposing stricter rules for H-1B visa applications submitted by outsourcing companies for highly-skilled foreign workers.

According to a policy memo issued last month, “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.”  

The stricter requirements stem from President Trump’s “Buy American and Hire American” executive order. That order seeks to create higher wages and employment rates among U.S. workers by tougher enforcement of U.S. immigration laws. It also calls for enacting policies that ensure “the most-skilled or highest-paid petition beneficiaries” receive H-1B visas.

The H-1B visa program has come under fire in recent years as technology outsourcing companies—many of them based in India—began receiving the bulk of H-1B visas awarded through the lottery system, which opens April 2. Moreover, outsourcing companies gained a reputation for paying salaries lower than those offered by U.S.-based companies for comparable positions.

Stricter Rules for H-1B

The memo orders all USCIS officials to require extensive documentation about what H-1B candidates will do—and for what companies—why they are needed, and where and when they will work. Specifically, it requires corroborating evidence that:

• The H-1B petitioning company has specific work assignments in place for the H-1B candidate.
• A Labor Condition Application (LCA) form filed with the U.S. Department of Labor Employment and Training Administration corresponds to the work assignments.
• The work to be performed by the H-1B candidate will be in a specialty occupation based on the work requirements imposed by the end-client.
• The H-1B petitioning company, which is the employer of the H-1B candidate, will maintain an employer-employee relationship with the H-1B candidate for the duration of the visa.
• Details the dates, company names, telephone numbers, and locations where the H-1B candidate will be working if working for more than one third-party location or worksite.
• The contracts and conditions under which the H-1B candidate will be working will continue to exist for the duration of the requested H-1B visa period. Although an H-1B visa may be approved for up to three years, USCIS has the discretion to limit the approval period.
• The H-1B requirements have been met for the entire prior approval period if an H-1B petitioner is applying to extend the H-1B visa for a foreign worker.

Corroborating Evidence

The USCIS memo lists examples of the detailed, corroborating evidence officers should look for, including:

• Technical documentation, milestone tables, marketing or cost-benefit analysis, brochures, and funding documents for proving work assignments.
• Signed contracts between the H-1B petitioning company and all others where the H-1B candidate will be working.
• A detailed work statement or order signed by an official at the third-party company where the H-1B candidate will work. The statement should include:
  • The specialized duties the H-1B candidate will perform.
  • The qualifications required to perform the job.
  • The duration of the job assignment.
  • Work hours.
• A letter signed by an official at the third-party company where the H-1B candidate will work. The letter should include:
  • The specialized duties the H-1B candidate will perform
  • The qualifications required to perform the job.
  • The duration of the job assignment.
  • The salary or wages paid, hours worked, benefits,
  • A detailed description of who will supervise the H-1B candidate and the candidate’s duties.

We Can Help

The H-1B lottery opens on April 2. Given the additional scrutiny and higher denial rate for H-1B petitions under the Trump administration, submitting the most compelling evidence along with a detailed petition is crucial for success. The Alcorn Immigration Law team can help. Contact us.