WASHINGTON – The Trump administration has announced a new policy that makesvery tough the procedure of issuing H-1B visas to those to be employed atone or more third-party worksites, a move that will hugely impact Indian ITemployees.

Under the new policy, the company would have to go an extra length to provethat its H-1B employee at a third-party worksite has specific andnon-qualifying speculative assignments in speciality occupation.

The H-1B programme offers temporary US visas that allow companies to hirehighly skilled foreign professionals working in areas with shortages ofqualified American workers.

Indian IT companies, which are among the major beneficiaries of H-1B visas,has a significant number of its employees deployed at third-partyworksites. A significant number of American banking, travel and commercialservices depend on on-site IT workers from India to get their job done.

The new move announced yesterday through a seven-page policy empowers theUS Citizenship and Immigration Services (USCIS) to issue H-1B visas to anemployee only for the period for which he/she has work at a third-partyworksite.

As such the issuing of H-1B visas could be of less than three years. Thiswould reverse the tradition of issuing the H-1B visas for three years at atime.

Effective immediately, the new guidance comes weeks ahead of the beginningof the H-1B visas filing season, which is expected to be April 2, for thefiscal year 2019 beginning October 1, 2018.

The guidance says in order for an H-1B petition involving a third-partyworksite to be approved, the petitioner must show by a preponderance ofevidence that the beneficiary will be employed in a speciality occupationand the employer will maintain an employer-employee relationship with thebeneficiary for the duration of the requested validity period.

When H-1B beneficiaries are placed at third-party worksites, the companiesmust demonstrate that they have specific and non-speculative qualifyingassignments in a speciality occupation for that beneficiary for the entiretime requested on the petition.

While an H-1B petition may be approved for up to three years, the USCISwill, in its discretion, generally limit the approval period to the lengthof time demonstrated that the beneficiary will be placed in non-speculativework and during which the petitioner will maintain the requisiteemployer-employee relationship, an official statement said.

Extensions of H-1B visas have become even tougher, in particular if theemployee has been on a bench for any part of their previous duration.

Sometimes American companies abruptly end the contract of an employee as aresult the workers temporarily do not have any work, which in IT parlanceis called on bench.

During this period, while they maintain their H-1B visas status, officialinvestigations have revealed that foreign IT workers on H-1B visas do notget paid, which the USCIS says is illegal and abuse of the system.

“If an H-1B petitioner is applying to extend H-1B employment for abeneficiary who was placed at one or more third-party worksites during thecourse of past employment with the same petitioner, that petitioner shouldalso establish that the H-1B requirements have been met for the entireprior approval period,” the USCIS said.

And if these conditions are not met, and if the petitioner did not complywith the terms and conditions of the original petition and did not file anamended petition on time, USCIS may have eligibility concerns about asubsequent petition filed to extend the beneficiary’s employment, thepolicy memorandum said.

The latest policy memorandum is part of President Donald Trump’s ‘BuyAmerican and Hire American Executive Order’ and the directive to protectthe interests of US workers, it said.

Employment-based petitioners who circumvent the worker protections outlinedin the nation s immigration laws not only injure US workers (eg their wagesand job opportunities), but also the foreign workers for whom they arepetitioning, it said.

Companies seeking H-1B visas for their employees working at a third-partysite, would now have an intensive paper work to file before submittingtheir applications.

This includes evidence of actual work assignments, which may includetechnical documentation, milestone tables, marketing analysis, cost-benefitanalysis, brochures, and funding documents.

The letter should provide information, such as a detailed description ofthe specialised duties the beneficiary will perform, the qualificationsrequired to perform those duties, the duration of the job, salary or wagespaid, hours worked, benefits, a detailed description of who will supervisethe beneficiary and the beneficiary s duties, and any other relatedevidence, the USCIS said.