Challenge for H-1B Visa Sponsors

New Challenge for H-1B Visa Sponsors in the USA

The Trump administration has introduced a new rule for I.T. services and staffing companies based in the USA that sponsors foreign workers through the H-1B visa and recruits them to work at customer sites. On 14th January, the Department of Homeland Security signed a final rule redefining the critical term ’employee-employer relationship’ under this visa pathway. The next day, the Department of Labor issued a corresponding guidance note.

Additionally, customers of companies that depute H-1B workers must also file a Labor Condition Application (LCA) and an H-1B visa application (known as a petition). It will increase the administrative costs and burden on such customers and make them liable for ensuring compliance with working conditions and wages – which is currently only an obligation of the primary employer.

This rule will come into effect in 180 days and apply to applications filed on or after 14th January – including H-1B visa extension applications. It will discourage U.S. corporates from hiring foreign I.T. workers. The Trump administration has introduced several policies to make hiring H-1B workers more difficult – starting with the ‘Buy American, Hire American’ order of April 2017.

More recently, the travel ban extension for nonimmigrant workers and another rule that increases hiring H-1B workers has posed new challenges. As per the Department of Labor, H-1B workers’ employment often involves primary employers like staffing agencies that petition for the visa. Secondary employers like clients of these staffing companies where the H-1B worker is assigned to work in the USA.

With the new rule coming into force, if a primary employer (such as a staffing agency) places a worker (such as a software engineer) with a secondary employer (such as a technology firm), the visa petition and LCA must be filed by both the secondary and primary employer. So, individual H-1B workers will have multiple concurrent petitions and LCAs.

By incorporating common law elements, i.e., secondary employers, into the definition of an employer, the ’employer-employee relationship’ is now broadened. However, industry experts suggest that the Biden administration might strike down this rule. To stay updated on the latest H-1B visa policies and lawfully migrate to the USA, consult seasoned professionals by contacting 8595338595 or writing to [email protected].

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