The federal government plans to apply more scrutiny to third-party staffing agencies seeking skilled work visas to bring foreign-born workers into the U.S.
U.S. Citizenship and Immigration Services issued a memorandum Thursday expressing its intention to collect more information and documentation from so-called “outsourcing” firms, which rely heavily on the H-1B visa. These firms flood the H-1B visa lottery with petitions and use the visas they are awarded to bring foreign-born workers into the U.S. When they arrive, workers are contracted out to third-party employers. The practice has drawn criticism from tech companies like Microsoft that rely on the H-1B, as well as President Donald Trump’s administration.
Under the new memo, USCIS will collect contracts, itineraries, and other documents detailing the nature and duration of the third-party work a foreign-born worker has been contracted to do. In the past, agents did not have to review third-party contracts and documents.
Outsourcing firms petitioning for H-1B visas will also have to prove that their employees will be contracted for a “specialty occupation” and that they will maintain an “employer-employee relationship” with the company where they work. The bill would affect firms like Infosys, Tata Consultancy, and WiPro, the three companies with the most H-1B applications since 2012.
“USCIS looks at a number of factors to determine whether a valid relationship exists, including whether the petitioner controls when, where, and how the beneficiary performs the job,” the memo says.
Theda Fisher, an immigration attorney with Withers Bergman, said that the memo isn’t issuing new guidelines per say, but instead makes existing H-1B visa requirements “official.” In an email to GeekWire, she said the new guidance “gives USCIS adjudicators more deference to deny cases for failure to provide the requested documentation.”
The memo is in line with Trump’s Buy American, Hire American executive order which seeks to reduce fraud and abuse of the H-1B visa.
The order is controversial and immigration attorneys that handle H-1B cases say they have seen a dramatic decrease in the number of visas that are awarded since the order was issued.
“There’s been a seismic shift in how visas are being approved,” said immigration attorney Tahmina Watson at an event in Seattle in December. She said there “will likely be about 40 percent denials in this year’s H-1B cap and that’s going to have a big shape in how next year’s visa activities happen.”
But others welcome reform of the H-1B program, claiming that there is widespread abuse. Microsoft CEO Satya Nadella said he supports reforms to the program in an interview with Marketplace after Trump issued the executive order.
“Ultimately, it’s about high-skill labor and a review that says there is the right use of [the H-1B] and misuses of it — and we promote more the right uses of it — all the better for American competitiveness,” he said. “At least at Microsoft, when we think about H-1B, it’s mostly about high-skilled labor that allows us, an American company, to be globally competitive.”