History of the Immigration Visa
The US Visa is a permit that allows foreign citizens entry into the United States. The Steerage Act of 1819 was the first Federal Law to make a distinction between permanent immigrants and temporary visitors, although they were reported as one lump sum. It was almost another 40 years when in 1855 The Passenger Act was passed which mandated a sperate count of permanent and temporary entrants into the United States. As the Civil War was ending and the need for labor was growing, the first Immigration Law addressing Immigration Labor was passed in 1864, known as the Act to Encourage Immigration Law.
As the need for labor in the United States ebbed and flowed, Immigration Laws were adjusted to encourage and discouraged temporary immigration. The birth of the current H-1B Visa program is outlined in the Immigration Reform and Control Act of 1990 signed into law by then President H.W. Bush. The foundation of the H-1B Visa stems from the Immigration Act of 1924. The 1932 Amendment of the Immigration Act of 1924 was the first to prescribe time limits on temporary immigrants entering the United States to perform specific work.
Over the years Immigration Law concerning temporary workers entering the United States has been both supported and opposed by Labor Unions, and Business according to the economic conditions and political winds of the time.
Throughout the years, the Immigration Laws have created several different classes of Visas permitted entry into the United States. Most immigrants enter the United States on a temporary Visitor Visa for travel, followed closely by the Student Visa. The H-1B Visa is a part of the Temporary Worker Visa Program.
The H-1B Visa Basics
- Limited Number issued annually with exemptions that add to the statutory limit
- Issued by Lottery because applications far exceed the amount of available H-1B Visa
- Minimum of a Bachelor’s Degree or equivalent
- Additional Visa Class by exemption for those holding a Master’s Degree of Higher
- Limited to a Six Year Maximum including extensions
- Applicant must have a sponsored (employer) job offer and contract
- Recognized as a Dual Intent Visa, holders can apply for Resident Status Green Card while on an H-1B Visa
- Established and Maintained Employer-Employee relationship throughout the term of the Visa
Since the inception of the H-1B Visa Program it has been a favored employment source of the IT industry. In an industry that engages in third party services, many have claimed that the H-1B Visa Program has been abused. In response to these claims, The United States Customs and Immigration Service (USCIS) continues to update the H-1B Visa requirements with specifics related to third party work performed by sponsored H-1B Visa Holders.
In a recent policy memo issued on February 22, 2018, the USCIS, intends to clarify the existence of End Client contracts. In addition to the existing requirements for H-1B Holders and their Employee sponsors, the USCIS wants documentation that the Employee-Employer Relationship is continuing with third party assignments. The gist of the new reporting requirements as spelled out in the memo is to ensure that the H-1B Visa Holder remains employed in the Specialty Occupation for which the Visa was issued based on the original application. Submitting the required documentation falls on the Employer, however, it is ultimately the holder of the H-1B Visa who is at risk should the standards imposed not be met. Employers who have relied on in house staff to fulfill their H-1B Visa application requirements will now have to seek out the specialized counsel of a well-versed Immigration Attorney to remain in compliance with the reporting and documentation procedures.
Employer Documentation Requirements to Sponsor H-1B Visa Applicants
- Specific Work Performed, Location and End Client
- List of contracts detailing the specialty work performed
- Actual work performed by the H-1B Employee, and that it matches the specialty occupation skills listed as requirements on the H-1B application
- Contracts and Work Orders substantiating that the work performed for the end client are indeed a specialty occupation.
- Evidence of work assignments must be supported by funding documents, copies of signed contracts between vendors and clients.
- Copies of detailed work performed by the H-1B worker, job duration, hours worked
- Original Signed Letter from the end client where the H-1B Worker will perform their specialized duties to include, wages, hours, benefits and supervisory report of performance
The most recently issued memo by the USCIS, which is an attempt to tighten and restrict H-1B Visa application from straying from their intended purpose will also impact the H-1B Holder. It also requires the Holder to produce more documentation for approval and extensions. The new documentation burden may affect timing of extensions and cause H-1B Visas to go into limbo while awaiting extension approvals. While not cutting down on the number of H-1B Visa that are issued, the current regulations as applied by memorandum may indeed slow the process. H-1B Visa Holder may now find it necessary to visit immigration attorneys on a regular basis to remain in compliance with the more detailed requirements.
H-1B Employee Documentation Requirements to maintain H-1B Status
- Employer/Employee Relationship must be maintained throughout the duration of the H-1B Visa
- A detailed itinerary is required, including all work locations with exact dates and job duties that meet the work specialty on Visa
- Dates of Service and work performed
- Name, address, phone numbers and location of work performed for each end client, detailing exact location where work was performed within the company
- All documentation must be submitted for the entire duration of the valid H-1B Visa period. The USCIS can choose to approve for a limited duration instead of the full three years.
- Extension applications must include all the above details for the extension period
Although the rhetoric is opposing H-1B Visas is currently at a high point, the number of available H-1B Visas has not been decreased. What has changed is that the regulatory requirements for applications, approvals, extensions and verifications have become more detailed. The H-1B Visa is alive and well, the yearly available visas remain the same. The current administration of the program seeks to curtail what is seen as inherent fraud by tightening the reporting documentation on both the Sponsor (Employer) and the Applicant (Employee). Valid Sponsors and Applicants can both befit from a knowledgeable Immigration Attorney who is well versed in the requirement changes as they are issued by the USCIS.
Eligible Sponsors and Visa Applicants can successfully obtain an H-1B Visa with full, accurate and compliant documentation that adheres to the regulatory changes. With 65,000 H-1B Visas ready to be issued, and another 20,000 additional exemption Visas, it is imperative that all your documentation is submitted in a timely and complete manner. The newly memorialized regulation requirements will certainly exclude many of the 233,000 yearly applicants who apply for the H-1B Visas because of incomplete applications. A certified Immigration Attorney who works on Visa applications of all classes is the best asset in submitting an application that meets the standards imposed by the USCIS.