On February 22, 2018, the U.S. Citizenship and Immigration Service (USCIS) issued new guidance about documentation requirements for H-1B visa petitions. Intended to help USCIS officers evaluate applications, this guidance outlines more robust, although not necessarily new, standards for the contracts and itineraries that support a petitioner’s application for a work visa.
H-1B visa basics
The H-1B visa enables employers to hire alien workers in various specialty occupations, for which there is a shortage of qualified U.S. citizens or legal residents. (The employer applies for the visa on behalf of the alien.) The foreign worker must have a demonstrated skill in a recognized specialty occupation, such as information technology (IT), mathematics, or scientific research. Generally, workers with H-1B visas are required to have at least a bachelor’s degree. There are annual caps on the number of H-1B visa granted in each calendar year, which stokes competition among employers seeking these coveted visas. For example, the 65,000-visa cap was reached within days in each of the past four years.
Contracts and itineraries
Under the prior guidance, applicants had to provide itineraries (names and places were the immigrant workers would be performing the work), but those itineraries did not have to spell out exact dates and places, and employment contracts were not required as a matter of course. The February 2018 memorandum changed that standard. Citing the agency’s overarching mission of protecting the interests of U.S. workers, the new guidance tightens standards for required supporting documents and focuses more tightly on ensuring that workers are indeed engaged in specialty occupations for the “duration of the requested validity period.”
The goal of the new guidelines is to curtail employer abuses of the HB-1 visa program, such as underpaying workers or having workers perform non-specialty duties. In theory, such abuses are less likely to occur when sufficient backup documentation is required and reviewed before USCIS issues the visa. “Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning,” the memo states.
In particular, the new guidance seeks to curb abuses related to third-party employers, so-called outsourcing firms, many of which employ IT professionals on H-1B visas. Officials will be scrutinizing more closely the actual work being done by the contractors of these thirty-party companies.
The most recent guidance memo is just the latest in a series of steps taken regarding immigration and visas under the current administration, particularly since President Donald Trump issued the “Buy American and Hire American” executive order in April 2017. That order directed officials to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
Given the present climate, more visa and immigration changes can be expected. Employers or workers with questions about H-1B visas, visa status, or renewal applications should consult an experienced immigration attorney.