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New regulations aimed at preventing the extension of H-1B visas

United States Citizenship and Immigration Services (USCIS) , the government agency that oversees lawful immigration to the United States is considering new regulations aimed at preventing the extension of H-1B visas, predominantly used by Indian IT professionals, as part of US President Donald Trump’s “Buy American, Hire American” initiative, says a media report.

The move could directly stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending.

The proposal which is being shared between the Department of Homeland Security Department (DHS) heads is part of Trump’s BA-HA initiative promised during the 2016 campaign, US-based news agency McClatchy’s DC Bureau reported.

It aims to impose new restrictions to prevent abuse and misuse of H-1B visas, besides ending the provision of granting an extension for those who already have a green card.

The act currently allows the administration to extend the H-1B visas for thousands of immigrants, predominantly Indian immigrants, beyond the allowed two three-year terms if a green card is pending, the report said.

“The idea is to create a sort of ‘self- deportation’ of hundreds of thousands of Indian tech workers in the US to open up those jobs for Americans,” it said, quoting a source briefed by Homeland Security officials.

“The agency is considering a number of policy and regulatory changes to carry out the President’s BA-HA Executive Order, including a thorough review of employment-based visa programmes,” said Jonathan Withington, chief of media relations for USCIS recently.

The H1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise.

It is typically issued for three to six years to employers to hire a foreign worker. But H-1B holders who have begun the green card process can often renew their work visas indefinitely.

The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.

The proposed changes would have a dramatic effect particularly on Indian visa holders considering more than half of all H-1B visas have been awarded to Indian nationals, the report said, quoting the Pew Research Centre report.

“This would be a major catastrophic development as many people have been waiting in line for green cards for over a decade, have US citizen children, own a home,” said Leon Fresco, who served as a deputy assistant attorney general for the Justice Department in the Obama administration who now represent H-1B workers.

Fresco estimates more than one million H1-B visa holders in the country are waiting for green cards, many of whom are from India and have been waiting for more than a decade.


All about H-1B

The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a) (15) (H) which allows U.S. employers to employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status, find another employer (subject to application for adjustment of status and/or change of visa), or leave the United States. Effective from January 17, 2017, USCIS modified the rules to allow a grace period of up to 60 days but in practice as long as a green card application is pending they are allowed to stay. In 2015, there were 348,669 applicants for the H-1B filed of which 275,317 were approved.

Proposed reform

In 2017, the U.S. Congress considered more than doubling the “minimum wage” required of an H1B holder from the US $60,000 established in 1989 and unchanged since then. The High Skilled Integrity and Fairness Act, introduced by Congressperson Zoe Lofgren of California, would raise H-1B holders’ minimum salaries to US $130,000.

The action was criticized in the Indian press for confirming “the worst fears of (Indian) IT companies” in the wake of the reforms discussed during the 2016 Presidential election by both major candidates, and for causing a 5% drop in the BSE SENSEX index. Lofgren’s office described it as a measure to “curb outsourcing abuse” citing unfair tech hiring practices by employers including Disney and University of California San Francisco. On April 18, 2017, President Trump signed an executive order that directed federal agencies to implement a “Buy American, Hire American” strategy. At a press briefing, representatives of the Departments of Labour, Justice, Homeland Security, and State spoke that an executive order will direct federal agencies to implement a new system that favours higher-skilled, higher-paid applicants. The order is the first initiative in response to a key pledge made by Trump during his presidential campaign promotes a ‘Buy American, Hire American.’

The EO is intended to order federal agencies to review and propose reforms to the H-1B visa system. Through the executive order, Trump states his broad policy of economic nationalism without having to go through Congress. Cabinet secretaries from Departments of Labour, Justice, Homeland Security, and State will “fill in the details with reports and recommendations about what the administration can legally do.” Trump argued that the EO would “end the ‘theft of American prosperity’, which he said had been brought on by low-wage immigrant labour.”