Benching is non-existent in the books of USCIS. H1 B is for you, as an employer who have an imminent requirement, you need a STEM skilled resource for a specialty occupation, and are willing to pay the prevailing wage. You filed for the H1B on behalf the beneficiary (your prospective) employee. Thus the concept of benching doesn’t exist.
Even in a “remote work” scenario, one of your STEM skilled employees, currently working elsewhere or in your own project, is required for a specialty occupation position with another “end - client”. You agree to transfer the employee provided the following happens.
So long as the “Temployee” (Temp-Employee: your employee who will be a contractor with the end client) will be paid the prevailing wage, so long as you maintain the employee - employer relationship with them, so long as you will have the right to cotrol the employee (such as the right to hire, fire, pay, benefits),the employee remains compliant.
Most of the ethical consulting agencies apply for H1B applications for its foreign worker clients after securing jobs for them. Such companies keenly follow the compliance process and ensure that all the USCIS requirements are met.
Importantly, ethical companies ensure that their off-site employee has a Valid Visa, project documents, specialty labor certification, original client letter with a proven statement of #work and are paid the appropriate prevailing wages.
It is no secret that such employers pay further attention to the much sought out details like employee-employer relationship and also establish demonstrated and verifiable ability of the employer’s “Right to Control” the employee.
It is common for employees to find such ethical consulting companies who use specialized solutions such as www.rightcomply.com that were created to establish transparency and accountability across the IT consulting employees, employers and every actor in the hiring chain.
More often than not, you find employees who work for such consulting companies often get their work visas renewed for the full term. Even those who get RFEs, get them resolved right away, providing immediate peace of mind for their own employees.
Several run of the mill body shops who create fake data about its clients to defraud the various authorities in the visa process. Fake #compliance documents like SOW and employment eligibility documents lead the immigration officials to conduct raids which might even result in deporting the employee and their families.
Through manipulation, a “bench” of fraudulently authorized foreign workers is created and can be “switched” to actual employers when they are in need, without them going through the actual time-consuming process. Hence, Trump administration, while increasing the rate of rejection even for genuine H-1B applications, has also taken a tough stance on combating visa fraud and #illegal migration.
Employees are allowed a 60 days grace period by the USCIS to legally transfer themselves from one H1B visa to another. The new employer can immediately initiate a transfer and thus help the employee remain compliant and maintain their work status.
The question as a consulting employee in the IT industry, “What are the measures your employers are taking to protect your visa status, your employment and your stay in the country? Is this an easy route? Discuss now.
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