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Due to a new requirement by at least one U.S. consulate in India, H-1B employees now face a new risk of a permanent bar from the United States for unlawful actions by their H-1B employers.

The U.S. Consulate in Hyderabad, as shown in a document obtained by AILA, is now requiring H-1B employees who will be working at third-party client sites in the United States to sign an attestation about their work conditions, which, if erroneous, could expose them to a life-time ban from the United States.

The attestation (reproduced below) states a series of conditions about the employer-employee relationship and the work at the third-party site, then at the end says:

I understand that any false, knowingly incorrect, or misleading statements made to a consular or immigration official may result in a permanent ineligibility for a visa to the United States of America.

What this statement means is if you intentionally provide false information about your work conditions, or even guess at what the information might be, and that guess turns out to be wrong, you could face a permanent bar to entry to the United States.

Attestation Based on USCIS Crackdown and Guidance for H-1B Employer-Employee Relationship

This attestation is byproduct of a USCIS policy memo that details restrictions on third-party client work for H-1B visa holders. USCIS realized H-1B employers were skirting the regulations or committing outright fraud by luring foreign workers to the United States with promises of well-paying jobs, only to make them go find their own contract work at third-party sites, leaving them unpaid for periods of time (often weeks or months) while they sought work: a practice known as “benching.”  Such H-1B employers provide no legitimate work themselves. This practice, while unlawful for H-1B employees, is common in the IT field where contractors are hired for a specific project.

To cut down on this type of fraud, in 2010 USCIS issued a policy memo defining what it considered to be the required employer-employee relationship for an H-1B visa and how that relationship had to be maintained if an employee was working on third-party projects and off site at a client location. USCIS looks at such factors as who controls and supervises the employee, who pays the employee, what is the nature of the work the employee is doing, etc. At the same time, USCIS also increased its surprise inspections of H-1B employer work sites, verifying the proper H-1B employer-employee relationship exists.

The document the U.S. Consulate is giving to H-1B visa applicants tracks the same factors outlined in the USCIS guidance.

US CONSULATE GENERAL, HYDERABAD, INDIA

DATE

I, _____________ born on _____________ in _____________ state that:

  1. I have read and understand the Wilberforce pamphlet.
  2. The petitioner is _____________
  3. The petitioner supervisor is _____________ with a principle location of _____________
  4. The number of petitioner employees at the work site is_____________
  5. My primary work location is _____________
  6. The end-client for my work is _____________
  7. The end-client supervisor is _____________
  8. The _____________ supervisor is located ‘offsite’ and is not regularly employed for the predominant part of the workday/work week/work month at the site where I work.
  9. Contact with the _____________ supervisor is limited to weekly visits to the _____________ office and occasional Petitioner supervisor visits to end-client work sites.
  10. The principle day-to-day management is conducted by the client, _____________
  11. The client, _____________, provides the tools and equipment (including any software and operating environment) needed for the job.
  12. The petitioner, _____________, makes primary hiring firing and promotional decisions.
  13. Petitioner supervisor sits down at end-client location and reviews code, does not rely on on-site Petitioner supervisor for evaluation purposes.
  14. The petitioner, _____________ claims Beneficiary for tax purposes
  15. The petitioner, _____________ provides primary benefits, such as life/medial insurance etc.
  16. The petitioner _____________ does not provide any primary/key proprietary tools or applications for the work.
  17. I produce a product related to Petitioner’s line of business.
  18. The client, _____________ makes the main development and product decisions for the end product I produce.

I understand that any false, knowingly incorrect, or misleading statements made to a consular or immigration official may result in a permanent ineligibility for a visa to the United States of America.

Are You At Risk of Being Banned Permanently?

The attestation at the bottom focuses on the applicant’s knowledge of the work conditions and any misleading information or outright lie. What this means is if the H-1B applicant believes all the required factors exist – that he will have a weekly visit from his employer, that he is controlled by his employer, etc. – then, when he goes to the United States and discovers his employer had lied to him, and instead he is completely controlled and supervised by a third-party client, he would not be guilty of misrepresenting his situation.

Not all employees, however, know and understand the full extent of their work conditions in the United States, or they may know some of the factors, but not all. If you are not sure about a particular factor and you provide the answer you think the consular officer wants to hear so that you get your visa, and that answer turns out to be wrong, even if you didn’t know what the actual condition would be, you could still find yourself barred from the United States for misrepresenting your work situation. So, for example, statement 14 says your employer will be claiming you for tax purposes. You may never have discussed such internal business operations with your prospective employer, so you may not know personally that your employer is claiming you for tax purposes, but you assume so, and you agree with the statement anyway to get your visa. Then, later if that statement turns out to be wrong, you could be found to have mislead the consular officer and be barred from the United States.

What Can I Do to Minimize the Risk I Might be Banned?

To avoid the harsh consequences presented by this attestation, be sure to always tell the truth. If you don’t know the answer to a question, just tell the consular officer. Don’t tell the consular officer what you think might be correct so that you can get your visa now rather than have to wait until you obtain the information and can get a follow up appointment. Now that you know you could be asked to sign such an attestation, you can prepare yourself in advance and ask the employer about your work conditions so you can respond fully and truthfully.

For more information about legal services we provide to H-1B employees, please see our page here.

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