USCIS has released a new H1B policy change on Feb 22, 2018 making it tougher for third party software consultancy firms like TCS, Infosys, Wipro and others to get H1B approvals, by asking for extra set of documents.
Trump, under the latest H-1B Visa policy, is asking the companies to go an extra length to prove that its H-1B employee at a third-party work site has specific and non-speculative assignments in specialty occupation for the beneficiary for the entire time requested in the petition.
1. Validity period of H1B to match SOW
USCIS says that the H1B approval will also be issued ONLY for the period that the work assignment’s contract has been signed between the employer and 3rd (third party) contracting company.
This effectively means, that the SOW (statement of work) would primarily define the H1B worker’s length of visa approval and not the usual 3 years.
If the SOW between your consultant company and the third party company is for 9 months only, your H1B approval will only be for 9 months and NOT complete 3 years.
Earlier this year, a news broke that Trump admin was thinking of ways to stop the H1B extensions after 6 years.
Several attorneys analyzed and had the view that it is NOT possible without a change in immigration law by government and hence, USCIS issued a public statement defying the news.
With this new USCIS policy, they are trying to demotivate the companies from hiring H1B workers, by increasing their cost exponentially.
This un-official way of twisting things is certainly targeted at extracting political mileage without changing the law.
Imagine, an H1B worker on 3 months contract, will have to spend money on H1B approvals every 3 month!
Every H1B application will have to be filed with ‘Premium processing’ as the standard H1B processing usually takes around 5 months!
This is seriously going to dent their profits and make it extremely expensive to hire an H1B worker as a consultant for short term projects.
With DHS planning to remove H4-EAD work authorization at the same time, this is certainly a big blow to Indian and Chinese H1B workers and their families.
2. Detailed Work Itinerary Required - Specific Dates and Location
Each H1B petition needs to include detailed and specific information now:
The dates of each service or engagement or work location;
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 on H1B petition; and
Corroborating evidence for all of the above.
3. H1B Extensions - Prove past work did not violate H1B rules
H1b sponsor should now 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 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, but
the extension of stay request may be denied.
This applies to petitions where the H1b worker will remain at the same work-site or be placed at a new work-site.
H1B amendments and extensions, both will now be evaluated using the 3 strict criteria for IT consulting companies.
The H1B approval will probably be easier for direct client hire positions and extremely difficult for 3rd (third party) consultants.
The H1B consultants / contracters with multiple layers of vendors between them and the end-client will have a hard time getting the paperwork for their H1B extensions.
SOURCE: USCIS full policy memorandum
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