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Administration tightens rules for some H-1B visa sponsors

The H-1B visa allows certain highly skilled people to work in the U.S. for several years. It also allows fashion models and specific workers on Department of Defense projects to work temporarily in the United States. What H-1B visas are most noted for, however, is bringing in foreign talent when high-tech industries can't fill their jobs with home-grown workers.

The visa has seen its share of controversy. One controversial use of the program has been the rise of third-party sponsors -- typically outsourcing companies who sponsor large numbers of H-1B applicants. The companies then work kind of like temp agencies, sending these so-called "specialty occupation" workers out to work at other companies that need the help but which don't have enough qualifying work to sponsor H-1B applicants of their own.

The U.S. Citizenship and Immigration Services acknowledges that this business model can be legitimate but has some concerns. In a recent policy memo, the USCIS said that the model makes it difficult to assess whether the H-1B visa holder will actually be employed full-time performing qualifying work. It is also difficult for the agency to verify that the required employer-employee is in place between the sponsor and the visa holder.

The agency also notes some "significant employer violations" in these business relationships. For example, outsourcing firms may "bench" visa holders -- refuse to pay them while they await assignments. Or, they may have H-1B holders perform non-specialty occupation work that would not justify their permission to work in the U.S.

Therefore, the agency has put in some additional requirements for third-party work site sponsors. When an H-1B applicant will be placed at third-party companies, the sponsor must demonstrate that it "has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition; and the employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period."

Acceptable evidence includes work orders, contracts, and other paperwork relating to actual work assignments.

USCIS may be requiring more evidence from H-1B applicants, too

The Mercury News reports that the H-1B program may be under a new level of scrutiny, as well. Reporters report found a substantial increase in the number of application reviews the USCIS has been initiating. Between January and August 2017, there was a 45-percent increase in such reviews over the same period in 2016.

Whether you are an employer who wishes to sponsor an H-1B visa applicant or an applicant who wishes to work in the U.S. as part of the H-1B program, we recommend contacting an attorney for help. Get experienced help by contacting Yew Immigration Law Group for a consultation.

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