No, H1B approval has not changed one bit, Trump admin just put subcontractors on a tight leash

No, H1B visa rules have not “changed” and neither has approval gotten any “tougher” as of this week. The latest USCIS guidance released Thursday night EST is a routine flashing red siren to keep H1B workers’ contracts reined in as a limited number of linear relationships rather than allow this visa category become a subcontractor’s paradise.

USCIS confirmed to Firstpost that this is an accurate understanding of the new note that's circulating.

H1B workers don’t always work for the person who controls their H1B papers - the “employer” but instead take up work at the client location who pays the “employer” who in turn pays the H1B worker. The more the layers, the more the cost to company ( because only a bumped up CTC can assure all parties a certain RoI) and implicitly, the notional damage to some American worker out there who may have been able to fill the same job description (without the pile-up formula).

The ‘body shopping’ model that informs a 1-2-3 layer contractual relationship has always been at the heart of the H1B visa’s genesis nearly three decades ago. For example, let’s say Company A (employer) brings its staffer (employee) to work at JP Morgan (client), that’s the typical cookie cutter. The latest guidance, on the surface may seem to be addressing this but no, the USCIS is only doubling down on the model going rogue. These are not "new rules" at all, it's the USCIS hammering home the point that they have a big stick ready for 'corp-to-corp' arrangements (localese for H1B subcontracts) that play on the fringe of the rulebook.

How can this model go rogue?

This is the gist of the message that the USCIS seeks to seed in the employment based visa community - zero tolerance for abuse and fraud/ REUTERS

This is the gist of the message that the USCIS seeks to seed in the employment based visa community - zero tolerance for abuse and fraud/ REUTERS

So, if the subcontracting pipeline goes beyond the 1-2-3 model and adds a layer, a $ 100,000 per annum payout to the actual worker implies a progressively higher CTC because each layer of this beast has to be fed its pound of flesh.

The latest policy memorandum “makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location.” Now, this is no different from the bare bones of any contractual obligation. The subtext here is this: That ever since the USCIS went to town with its easy as pie version of fraud reporting - a simple email ID (reporth1babuse@uscis.dhs.gov) that delivers the dirt straight to the H1B visa’s minders, the quality of information that’s coming in has fundamentally been transformed.

What’s out today is new as far as the dateline is concerned but has been in effect since Spring 2017 soon after Trump entered the White House. The most widely used piece of H1B reading material circulated by USCIS titled ‘Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud’ clearly says that USCIS will focus on targeted site visits and focus on three issues:

Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

The third item here is due diligence of third party arrangements wherever they exist, the same point that is raised in the new note.

The underlying message is for employers across all layers of the subcontracting ecosystem to ensure that they don’t mess with on time payments and paperwork just because the employee - in this case the H1B worker - is kept on such a tight leash.

It is precisely for this purpose that the Department of Labor (DOL) and Immigration and Customs Enforcement have detailed forms that can be filled up online in addition to reporting fraud on the email ID that USCIS has created.

Even a cursory glance at the reply threads on any of USCIS' tweets reflect the deep animosity that a few shady operators have created against the larger H1B community which contributes richly to the rule-based economy.

A detailed interview with the USCIS on the H1B visa will be uploaded soon.

Twitter | @byniknat


Updated Date: Feb 23, 2018 20:56 PM

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