Hurdles multiply for H-1B seekers

Recent H-1B visa enforcement updates pose new barriers for employers, applicants.

The hotly contested H-1B visa program slowed during the economic downturn only to find new life in recent documents putting additional restrictions and applying enforcement to H-1B employers and employees.

As H-1B seekers finalize applications for the 65,000 specialty visas available for 2011, legal analysts point out that the ongoing efforts by the U.S. government to enforce controls and prevent fraudulent practices could keep petition numbers lower and once again eliminate the need for a lottery

How did H-1B get such a bad reputation?

The pool of 65,000 H-1B visas for 2011 could take longer to deplete this year, similar to last year's scenario in which the number of petitions for 2010 H-1Bs didn't get near the cap until December 2009. On April 1, the U.S. Citizen and Immigration Service (USCIS) begins accepting H-1B applications for 2011.

In previous years, the number of petitions filed exceeded the maximum set by the USCIS in record time. And like other years, another 20,000 visas are made available to applicants via an exemption for recipients of a graduate degree from a U.S. university. In the event the petitions exceed the cap, the USCIS will conduct a lottery. But immigration experts don't expect that to happen for the available 2011 specialty visas.

"This is just anecdotal, but I don't expect there to be a lottery this year either. From the looks of it so far, people aren't filing any more visas than last year," says Eleanor Pelta, a business immigration attorney in the Washington, D.C. area. But unlike last year when companies were struggling to maintain operations during the recession, the reasoning behind this year's decline in petitions could likely be linked to recent discussions around new requirements for H-1B petitioners, she says.

"The biggest news in relation to H-1B this year is the January guidance memorandum by Donald Neufeld, the Neufeld Memo, which places new emphasis on employee-employer relationships," Pelta explains.

The Neufeld Memo, dated Jan. 8, 2010, provides guidance "on the requirement that a petitioner establish than an employee-employer relationship existing and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period," according to the document. That means that employer's sponsoring H-1B applicants need to demonstrate that they have a degree of control over the potential employee in terms of geography, pay, supervision and more. Requirements that, Pelta points out, would tie the hands of many consultant firms hiring foreign nationals via the visa program for assignment at third-party client organizations.

"A number of industries will be impacted by this additional requirement. Consulting, government contracting and even healthcare," Pelta says. "Clearly when a consulting company places an H-1B worker on a client site, there will be a lot of questions around who exactly is controlling the employee."

The added guidelines are just one among several efforts being made on behalf of the government to stamp out fraudulent practices related to the specialty visa program. For instance, the USCIS announced it would be conducting 25,000 random employer site visits to better verify if H-1B sponsor companies and employees were meeting visa requirements. Pelta says while such actions are necessary to regulate the program, the processes could add expense and penalize legitimate H-1B visa seekers.

"There has already been an increase in requests among the clients I've seen for additional evidence around the employee-employer relationship, which takes extra time and costs money for employer's looking to sponsor an H-1B visa applicant," Pelta says. "I think such requirements will keep the number of petitions down, but I guess we will see this week."

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