United States proposed not to issue business visa for H-1B speciality occupations

Vastavam web: The State Department has proposed not to issue temporary business visas for H-1B speciality occupations which allowed several companies to send their technology professionals for a short stay to complete jobs on site in the US, a move which could affect hundreds of Indians. The proposal, if finalised, will eliminate any misconception that the “B-1 in lieu of H policy” provides an alternative avenue for foreign professionals to enter the US to perform skilled labour that allows, and potentially even encourages them and their employers to circumvent the restrictions and requirements relating to the H non-immigrant classification established by Congress to protect the US workers, the State Department said.

The move, made public on Wednesday, less than two weeks ahead of the November 3 presidential election, is likely to impact several Indian companies which send their technology professionals on B-1 visas for a short stay to complete jobs on site in the US. “The proposed changes and the resulting transparency would reduce the impact of foreign labour on the US workforce of aliens performing activities in a specialty occupation without the procedural protections attendant to the H-1B classification,” it said.

In its federal notification issued on Wednesday, the State Department said the US architecture firm seeking protection from rising labour costs in the country might believe it could lay off its US architects and contract for the same professional architectural services to be provided by a foreign architecture firm. If the foreign firm sought H-1B visas for its architects, it would be required to pay the prevailing wage for architects in the area of intended employment in the United States, presumably the same wage the US architects had been paid, and meet the other requirements enacted by the Congress to protect US workers.

Under the Department’s guidance, visas could be issued for multiple architects planning temporary work in the US in certain situations. However, a foreign employer may succeed in undermining the US immigration law and policy by rotating architects between the US and the foreign country to effectively fill the position of one US architect at a significantly lower cost, the notification said.

“If the architects who intended to perform skilled labour were “of distinguished merit and ability… seeking to perform (temporary architectural services) of an exceptional nature requiring such merit and ability, one might argue the current regulatory language suggests this type of labour is a permissible basis for B-1 non-immigrant visa issuance,” the State Department said. This potential outcome is harmful to the US workers and contrary to the policies of the Trump administration, it said. The State Department said the application process for a B-1 visa does not include similar procedural requirements to protect the US workers like that of H-1B visas.