Why do H-1B visa woes continue?

Updated - May 05, 2018 07:36 pm IST

Published - May 05, 2018 06:53 pm IST

Citizenship question on an application.

Citizenship question on an application.

What is the problem?

Whether U.S. President Donald Trump is determined to dismantle or at least undermine the H-1B visa programme remains an open question, but the debate on the issue has remained intense since the 2016 presidential election campaign. On the campaign trail, Mr. Trump made some appearances with American IT workers who lost their jobs to Indians who had arrived on H-1B visas. Once he became President, he appointed a strong critic of H-1B, Jeff Sessions, as his Attorney General. Mr. Trump also made some remarks off and on, supporting the need to bring in talented people from abroad to sustain America’s edge in technology.

Why can't we ignore it?

The rise of Mr. Trump is based on the premise that immigration and trade have undermined the interests of American workers, and the H-1B programme cannot be ignored in that debate. The United States Customs and Immigration Services (USCIS), which runs the H-1B programme, is reviewing it to ensure that it fits into Mr. Trump’s ‘Buy American, Hire American’ political platform.

Are changes in the offing?

The H-1B visa programme is mandated by legislation; therefore, any structural change is possible only through a legislative process. The H-1B programme began with the Immigration Act of 1990, and the immigration of Indian IT talent to America since then has been a key driver of the country’s leap in technology. The programme has undergone many changes since then, and as it stands now, has an annual cap of 65,000. An additional 20,000 visas are available to aspirants with master’s degrees from American universities. Every year, several times the cap apply for visas, and the beneficiaries are selected through a lottery system. This year, the application window closed in April and the USCIS is processing visas for the selected beneficiaries. In a highly fractious U.S. Congress, passing any legislation is difficult, and changes to immigration and visa rules even more so. The USCIS, therefore, appears to be focussing on tweaking the programme through executive measures. Based on the underlying legislation that mandates the numbers and scope of the programme, many components are determined by executive rule-making. The lottery system to select the beneficiaries, for instance, is based on an executive decision. The Trump administration continued with the lottery system this year, but many politicians have been arguing for a change to account for the quality of beneficiaries. It is possible that the USICS may consider changes in the selection process in 2019.

Are some amendments in place?

Some changes have already been put in place. The agency now reviews all applications for renewal of H-1B visas, requiring the petitioners to establish eligibility all over again, after the expiry of the current term. As opposed to the earlier practice of issuing H-1B visas for three years, the USCIS plans to issue them for a shorter period. The agency is coming down heavily with inspection of work sites and other implementation issues to ensure that workers are at sites they are supposed to be. The business models of many Indian companies that use the programme are dependent on deploying the H-1B workers at third party sites, and the USICS has rolled out more stringent scrutiny of this mechanism. Overall, the incentives of bringing a foreign worker to America through the H-1B programme are being reduced for companies. A more disruptive move that the USICS has already confirmed is to discontinue work permits to spouses of H-1B workers awaiting approval of permanent residency. This was an executive decision by the Obama administration. The Trump administration has made it clear that it will undo the decision and deny spouses the opportunity to work. More than one lakh spouses are beneficiaries of what is called the H-4 Employment Authorisation Document. Most of them are women and from India. Moves to change the H-1B programme will continue in the coming months, as protecting the interests of indigenous workers has become a political imperative not only for the Trumpian nationalists, but also for Democrats. Several Democratic lawmakers also support measures to end misuse of the H-1B programme.

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