If finalized, this proposal will eliminate any misconception that the “B-1 policy instead of H” provides an alternative pathway for foreign professionals to enter the US. skilled labor that allows, and potentially even encourages, them and their employers to circumvent the restrictions and requirements related to the H nonimmigrant classification established by Congress to protect American workers, the State Department said.
The move is likely to affect many Indian companies that send their tech professionals on B-1 visas for a short stay to complete on-site work in the US.
On December 17, 2019, the California Attorney General announced an $ 800,000 settlement against Infosys Limited to resolving allegations that approximately 500 Infosys employees worked in California on Infosys-sponsored B-1 visas instead of H-1B visas, the State Department said.
“The proposed changes and the resulting transparency would reduce the impact of foreign labor on the US workforce of foreigners engaged in activities in a specialty occupation without the procedural protections associated with the H-1B classification,” he said.
In its federal notice issued Wednesday, the State Department said the American architecture firm seeking protection against rising labor costs in the country might believe it could fire its American architects and hire the same professional architectural services it would provide. a foreign architecture firm.
If the foreign company applied for 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 that American architects had been paid, and meet with the other salary. requirements enacted by Congress to protect American workers.
But under policy B-1 instead of policy H, foreign architects could apparently seek B-1 visas and travel to the U.S. to fulfill a temporary need for architectural services, as long as they maintained a residence in the country. foreign country and will continue to receive a salary, perhaps significantly lower than is customary for American architects, distributed abroad by the foreign firm (or under the auspices of a foreign parent or subsidiary), the State Department said.
Under the guidance of the Department, visas could be issued for various architects planning temporary jobs in the United States, in certain situations. However, a foreign employer may be successful in undermining US immigration law and policy by rotating architects between the US and the foreign country to effectively fill the position of an American architect at significantly less cost, according to the notification.
“If architects who intended to perform skilled work were” of distinguished merit and ability … seeking to perform (temporary architectural services) of an exceptional nature requiring such merit and ability, it could be argued that current normative language suggests this type of work is an allowable basis for issuance of B-1 nonimmigrant visas, “said the State Department.
This potential outcome is detrimental to American workers and contrary to the policies of the Trump Administration, he said.
The State Department said that the application process for a B-1 visa does not include similar procedural requirements to protect American workers as the one for H-1B visas.
Also, the fees for B-1 visas are much lower than for H-1B visas. While Congress required H-1B employers to pay significant fees to fund assistance to the U.S. workforce, as well as for the prevention and detection of skilled labor fraud, employers are not required to pay comparable rates to employ skilled workers under policy instead of H, it said.
According to the notification, the State Department estimates that this proposal will not affect more than 6,000 to 8,000 foreign workers per year, specifically foreign nationals who intend to serve in a specialty occupation in the United States.
By his estimate, up to 28 percent of the roughly 8,000 annual B-1 visas issued under policy B-1 rather than policy H were for foreign workers applying for a visa to perform services in a specialty occupation for a small entity. . In the USA.
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