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New rules for sponsors of H-1B visas at third-party work sites

The H-1B visa is widely used to allow high-tech workers to come to the U.S. temporarily to work in so-called "specialty occupations." The nonimmigrant visa is also available for certain Department of Defense project workers and fashion models, but the controversial version of the H-1B visa is the "specialty occupation" visa.

In order to qualify for an H-1B specialty occupation visa, the applicant typically must have a Bachelor's degree (or its equivalent) or higher and have an offer for a job which normally and customarily requires such a degree. Furthermore, the specific job duties must be specialized in complex that they generally cannot be completed by someone without that degree.

H-1Bs can be used in a variety of industries, but most are used for computer programmers, engineers and high-tech workers who come to the United States for three to six years when employers are dealing with a shortage of U.S. talent. Only 85,000 specialty occupation visas are issued each year.

You might expect that each of these highly skilled professionals is recruited directly for a full-time position. That routinely happens, but there is another, more controversial way for applicants to qualify for H-1Bs. Outsourcing companies hire a great many of these professionals. The companies sponsor the visa holders and then sell their skills to client companies who don't have enough work to justify bringing in a full-time worker for the entire visa period.

Critics of this model say it allows foreign talent to come to the U.S. when there is insufficient work to justify it. The outsourcing firms, critics say, may also underpay H-1B visa holders, pushing down wages for American workers in the same industries.

To address these concerns, the Trump administration has just issued a new policy requiring more details about the kind and quantity of work the visa holders would be doing at outsourcing firms or other third-party work sites. When sponsoring people for the visa, prospective employers will have to show they have "specific and non-speculative qualifying assignments in a specialty occupation" for the entire job period, and verify that they will "maintain an employer-employee relationship" with the visa holder.

In addition, a newspaper in California has noticed a sharp increase in H-1B application reviews the U.S. Citizenship and Immigration Services has been performing. Between January and August 2017, there was a 45-percent increase in requests for additional information sent to prospective employers and H-1B applicants.

If you are a company seeking to sponsor an H-1B visa applicant or if you would like to come to the U.S. on a specialty occupation visa, we encourage you to contact an immigration law attorney. The process has short timelines and complex requirements, and it is to your advantage to get your application right the first time.

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