New US Rules Make Hiring Tougher Under H-1B Visa, Popular Among Indians

H-1B: US firms must get their hiring applications approved by the Department of Labour

The Trump administration has introduced a set of stringent provisions to the H-1B visa application process under which American employers must disclose the total number of foreigners already employed by them, making it tougher to sponsor fresh foreign workers.

The H-1B visa, popular among Indian tech professionals, is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise.

The new information required by the Department of Labour is significant because before sponsoring a foreign worker for the H-1B visa, the company needs to get its labour application approved by it.

The department certifies that there are no domestic workers for that particular position and as such the company can hire a foreign guest worker under the H-1B visa category.

The Labour Condition Application form updates will now require employers to provide more detailed information about H-1B worker employment conditions, including disclosing all places of employment, the duration and the estimated number of H-1B workers at each office.

It also requires employers, who are seeking exemption on the basis of education, such as a Master's degree, to provide educational documents of the H-1B workers.

Under the new forms, employers also need to give an estimate of the total number of foreign nationals already working at each location listed in the application. Further revisions to the worker-complaint form include added data fields designed to better describe the nature of an alleged programme violation, the department said in a statement.

To allow enough time for the transition, the new forms will be made available in the coming weeks. An announcement will be made on the Office of Foreign Labour Certification's website, identifying the date when they will be made available, it said.

Since 2017, the department has taken action to combat visa fraud and abuse and encouraged US workers to report complaints.

It has also directed the department's Wage and Hour Division to use all its tools in conducting civil investigations to enforce labour protections provided by the visa programmes.

According to the Society for Human Resource Management, the form changes are the latest in a series targeting employers who place foreign nationals at third-party worksites.

In a February policy memo, US Citizenship and Immigration Services (USCIS) required employers to provide detailed work itineraries for the entire duration of H-1B petitions involving offsite employment. An advocacy group representing small and medium size IT companies have filed a lawsuit against USCIS on this issue.

"Employers should expect renewed scrutiny on where H-1B employees are working, whether they are working at third-party sites and, if so, whether the arrangement is permissible," said Justin Storch, director of regulatory affairs and judicial counsel at the Society for Human Resource Management.

"Given current scrutiny of H-1Bs, both petitioners and end users should be aware of what information is being disclosed on the forms and the fact that the Department of Labour is likely to make this information publicly available," Mr Storch said.