The major immigration reform bill passed this summer by the Senate includes new provisions for temporary work visas for high-skilled professionals such as H-1B and L-1B workers. The most welcoming part of the bill to Silicon Valley is an increase in the number of H-1B visas to be issued. High-tech companies have long sought relief from the H-1B annual cap.
However, the bill also contains new limitations on companies with a high percentage of foreign high-skilled workers. So called "H-1B dependent" companies who have at least 15 percent of their workforce made up of H-1B visa holders would now have to first try to recruit U.S. workers. Companies will also no longer be permitted to have L-1 and H-1B workers represent more than 50 percent of their total workforce. These provisions seem aimed at firms that hire large number of foreign technical employees, primarily from India, and outsource their work to other U.S. companies. Earlier in the year, Senator Chuck Grassley proposed similar legislation. While the current Senate bill is in limbo waiting for the House of Representatives, it seems likely that any new law relating to H-1B and L-1 visas will make it more difficult for companies that outsource their work product.
Special requirements in nonimmigrant visa petitions when the employee will be employed off-site
Many types of business employ high-skilled technical foreign workers in positions whose work location is different from the company's offices. Examples of this include a scientist performing clinical field trials at a local hospital, a software engineer implementing his employer's software on a customer's system or a financial auditor assigned to audit a client's business licenses. The fact that the primary work location is at a location other than at the employer does not invalidate the petition, but there may be additional procedural and evidentiary requirements such as:
- In an H-1B petition a prevailing wage should be obtained for each geographical location where the employee will be working and each location must be included in the Labor Condition Application that is required to be approved before the H-1B petition can be filed
- A company filing an H-1B or L-1 petition for an employee that will work off-site may want to include an itinerary with their petition
- The petition must show how the employee will be paid, supervised and under the direct control of the employer and not the business at whose location he will be based
The requirements for L-1A, L-1B, H-1B and other work-based nonimmigrant visas are complex and it is important to work with trusted and skilled immigration lawyers. This need is all the more paramount when the employee will be working from another location.