New Requirements for H1B Consultants

If you're in IT, foreign or not, sit up and read this.


In 2016, Time Magazine listed the 20 Best Songs to Wake Up To.  Don't ask me how Hit the Quan made the list.  In immigration news, however, the Trump administration just issued a policy memo that should wake up every IT manager in America, whether or not they employ noncitizens.  To be sure, every IT Consultant involved with H1B visas should sit up and read this.

As of today, the USCIS has "clarified" the Policy Requirements for Third-Party Worksite H-1B's, i.e. IT consultancies.  I put "clarified" in quotes because, although the new memo mostly restates the current law and requirements for H1B visas (not altogether unneeded by the way), there are several subtle and not so subtle hints regarding the way off-site employee H1B visas will be treated in the Trump administration.  This amounts to new H1B policy just as we enter the season of annual new H1B filings.

SUMMARY

Less deference will be given to H1B petitions, especially those involving IT consultancies, that 1) lack full documentation of the actual work to be done, 2) salary paid, and 2) evidence of a REAL employer employee relationship.

BACKGROUND

Last week I wrote a lengthy blog post about the trouble IT consultancies run into, and the resulting problems heaped on the rest of the H1B user community, by shortcuts in practices.  Read that blog here.  These types petitioners are not altogether blameless, because in a free market system businesses often push the system according to what they can get away with.  The simple reality is there's is a massive need for U.S. IT workers and, at the moment, there aren't enough U.S. citizens to fill the need.  So immigration authorities have not scrutinized H1B fraud and abuse like they could.  In fact, I was a tad critical of the USCIS's 2017 pronouncement of increased H1B site visits without much to actually show for the pronouncement 10 months later.  


Yet, lo and behold, as if someone at USCIS read my blog, the past week has seen 2 USCIS announcements specifically targeting increased enforcement of not only 3rd party, off-site, consultancies who use H1B visas, but also a more targeted enforcement of L1B visas.  Chaudhary Immigration Attorney readers may recall my post "outing" the real problem with wage abuse in the L1 visa system. L1B Visas Targeted for Increased Site Visits.

Having said this, no employer that follows the guidelines and required documentation, listed a myriad of places all over the USCIS website and elsewhere, should have a problem with H1B approval or compliance.  It is more tedious, to say the least, but once again USCIS has reiterated what documents are required to establish, for example, a proper employer-employee relationship when employees are working off-site.  I have required this of my off-site H1B clients who, to a T, have complained vociferously about the "extra" requirements that no other lawyer made them produce.  But evidence such as contracts, end-client letters, supervisory details, corporate structure charters, handbooks, to name just a few, are standard documents in every one of the H1B petitions filed by the Minneapolis immigration attorneys at Chaudhary Law Office.  The clients who follow my advice are ALWAYS approved.

And these requirements are not new.  The 2010 Neufeld Memo is crystal clear.  And USCIS' policy memo issue today restates what is already the rule.  Furthermore, if you want a simplified summary/guideline of what all H1B visas require, read our post on H1B Visas here.  It may be more tedious, there may be more double-checking on various fronts of an application, like the job description, wage level, business financials, employee relationship, employee background (personal and professional), the public file, and others, but that's already the rule.  Yes, it may inconvenience the HR staff, but the company must commit to these practices and instead of pretending it's only the employee's duty to provide proper documentation!  It's the employer's petition after all!  And I don't know how many times to say it, but, the foreign nation is the end-LOSER by visa abuse.  The company just files the next application!

THE NEW POLICY

Okay, so what does the USCIS's February 22, 2018 Policy Memo say and mean?

We know it restates some preexisting yet important rules.  It also mentions new approaches when considering whether to approve an H1B petition for employees working off-site:

1. USCIS now, in writing, considers vendors and sub-vendor relationships inherently prone to H1B visa abuse of wage and employer-employee regulations.

2. Contracts and itineraries that demonstrate specific, qualifying, and actual work assignments are now explicitly mandatory, INCLUDING between each vendor and sub-vendor.

3.  Each of the above contracts must also demonstrate or reinforce the employer-employee relationship along the chain of contracts and agreements.

4. Any prior interpretation that an itinerary may not be required, or one only containing general statements, is now explicitly struck.  THERE IS NO EXEMPTION FROM A DETAILED ITINERARY where the employee works at more than one site.

5. Itineraries are now explicitly encouraged even when the employee works at a single site, because it's another piece of paper that lists out the "non-speculative" work, thus serving as additional evidence.

6. THE BIG ONE:  Now, H1Bs may only be approved for the duration of the specific work!!  So no more 1, 2, or 3 year approvals regardless of the work identified.  This is NOT a new rule, per se, but a policy that this practice may occur in the USCIS's discretion.

7. ANOTHER BIG ONE:  This actually IS a new rule under this policy memo:  Extension applications now SHOULD ESTABLISH that work done during the prior approval period also complied with the above rules!!  This will contribute to the size of the application packet no doubt!  AND, interestingly enough, failure to demonstrate this may still lead to visa approval, but NOT approval to extend the beneficiary's STAY.   

THE UPSHOT

Submit casual, boilerplate H1B applications at your own risk.  It's the foreign employee that risks the most.  What's it worth being sent home?  It's a buyer's market, so why not choose an IT employer that SEEKS to comply with proper and legal immigration processes?

More analysis will be forthcoming.  One initial question is whether the contract and work requirement contradicts the Bureau of Immigration Appeals decision in Matter of Simeio Solutions, LLC.  Does one overrule the other?

And here's just a tickler to the American IT managers who wash their hands of immigration processes by using IT vendors:  If you don't see why you should care about this memo, you will soon.

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For the record, here's a great song that might help some IT consultants wake up!




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