Companies seeking H-1B visas for foreign-born workers must now prove there will be work for them for the entire duration of their stay stateside.
The U.S. Citizenship and Immigration Services (USCIS) has reportedly begun asking companies about the type of work H-1B visa recipients will be doing, right down to vendor agreements and a list of projects a visa holder is expected to work on. These particular requests for evidence (RFEs) are leading the government to deny companies the standard three-year green-light for H-1B visas, instead limiting some visas to a two-year term.
Jennifer Minear of McCandlish Holton tells Bloomberg that RFEs “have become really standard with third-party placement situations and staffing companies,” which she calls “ridiculous enough,” adding: “How can any of us guarantee we’ll be doing work three years from now?”
Robert Cohen of Porter Wright Morris & Arthur says RFEs are “a waste of time and money and effort,” noting: “We still have a lot of cases pending that we haven’t received anything on.”
“One has to believe that they’re just issuing RFEs for the sake of RFEs,” Cohen adds.
This comes amidst another setback for H-1B visa hopefuls. A federal court judge has dismissed a lawsuit from Usha Sagarwala, who claimed the USCIS wrongfully denied her an H-1B visa because she couldn’t demonstrate that she had a “specialty occupation” to qualify for the visa. She first obtained her H-1B in 2012, but recently wanted to switch jobs; she was hoping to pivot to a QA analyst position with HSK Technologies, an outsourcing firm that would place her with Anthem, Inc.
The job posting noted that a degree was needed, and Sagarwala doesn’t hold one. HSK tried to backtrack, and note the degree was desired (not a requirement), but it didn’t work.
That was just the latest incident in a much broader back-and-forth tussle. In addition to limiting the duration for H-1B visas based on the amount and type of work visa holders will be doing, the number of rejections is also up. Companies and outsourcing agencies are issuing big perks packages for H-1B visa holders, but the government has gone after the H-4 EAD, which allows spouses of H-1B visa recipients to work.
RFEs are a bit trickier than we may think. Should a company be forced to ‘out’ internal projects for a new hire? Opponents of the H-1B program may consider it the cost of hiring foreign talent; proponents might argue that the government shouldn’t leverage sensitive project information to approve visas. Bloomberg notes attorneys are responding to the RFEs for specific projects by saying they don’t apply to in-house work, because in-house employees might not be working on specific projects all the time. Rather, this requirement for assignments seems to be targeting outsourcing firms.