The U.S. government is proposing to change H1B rules in a way that will advantage those with advanced degrees from U.S. universities over regular H1B applicants and in a way that could potentially bring down the costs for sponsoring companies. This will have a significant impact on Indians because 74% of H1B petitions were on behalf of India-born workers in the fiscal year 2018.
The Department of Homeland Security (DHS) released an unofficial draft version of the rule, titled ‘Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens,’ in the Federal Register. The proposed rule will require potential H1B petitioners to electronically register with USCIS (a DHS department) during a designated period, prior to petitions being filed, and changes the order in which the advanced degree lottery and general H1B lottery are conducted, ostensibly to increase the chances of advanced (U.S. masters and higher) degree holders getting H1Bs and reducing the paperwork of sponsors.
Only those H1B sponsoring employers who get selected from the list of registered petitioners will be required to actually submit H1B petitions, for both regular and advance degree categories.
Under the proposed rule, advanced degree registrations will be selected first up to a cap of 20,000 and then the regular H1Bs, up to a cap of 65,000, are selected from all the unselected registrations.
Because the unselected registrations will also include those advanced degree registrations that did not get selected in the exclusive advanced degree lottery, there is a higher probability that advanced degree holders will be selected in larger numbers in the aggregate.
The DHS has said it expects a 16% increase in advanced degree holders as a percentage of all H1B recipients under the proposed system relative to the current system. “It’s not very clear how accurate it is,” said Sheela Murthy, an immigration attorney who runs the Baltimore-based Murthy Law Firm.
Part of Trump’s order
The proposal is part of a series of rules that the administration has put forth following President Donald Trump’s Buy American and Hire American executive order signed in April 2017. The order asks government agencies to find ways to allocate H-1B visas “to the most-skilled or highest-paid petition beneficiaries.” But it is unclear how the higher pay criteria will be met.
“I don't know how the USCIS hopes to accomplish the goals stated in the Memo about selecting higher paid workers by simply focusing on giving a preference to U.S. Master’s degree holders. Focusing on selecting those who are paid more or are better qualified has not been the legally required selection criteria for H1Bs and is not supported by existing laws and regulations, Ms. Murthy said.
“The current Administration is basically trying to re-create new policies without waiting for Congress to make changes in the current law,” she added. Mr Trump currently holds the record for the highest number of executive orders on an average annual basis since US President Ronald Reagan as per the The American Presidency Project, an online resource on presidential papers.
It is unclear how Indian IT companies – who are a large proportion of H1B visa users, will react. The Hindu reached out to several IT industry stakeholders, including Wipro, which declined to comment.
"Even if something on the face of it, appears to have some potential benefit because of the high level of distrust and suspicion against the administration and those who are implementing their policies, there is a concern among businesses and companies that there is always a hidden agenda on how to basically harm them or go after employers and companies," Ms. Murthy said.
"The only fault of these companies is that are unable to find the requisite skills in the local market and are going to a global workforce to bring the required talent into the United States to grow their companies, which will result in making the U.S. economy stronger," she added.
Between fiscal years 2015 and 2017, new initial H1B approvals dropped for the top seven Indian IT firms, as per the National Foundation for American Policy, a non-partisan research organisation.
The H1B draft rule will be official published on December 3 after which it is open for public feedback for a 30 day period prior to being finalized into law.
