The US revamps its H-1B visa process. Here’s why it matters

The US administration on Wednesday announced the new system of processing H1-B visa applications which reverses the lottery order so as to US degree holders and get more qualified job candidates into American businesses.

The Department of Home land Security (DHS) released the final copy of new H-1B visa process requirements on January 30, which will be followed while processing applications in the ensuing visa season starting April 1.

The new system will give priority to foreign workers with advanced degrees from a university or college in the US over those procured abroad, reported Hindustan Times on Wednesday. They will also require online registration but the DHS has postponed this until the system is up and running. Applicants will be able to continue to file paper petitions for now.

According to the new H1-B cap registration rule, the regular lottery will be conducted first giving those with US master’s degrees (or higher) a better chance at winning the lottery, thus making it more challenging for Indian students without an advanced US degree to secure a permit.

How were the previous rules different?

More than three lakh Indians, particularly in the tech sector, are believed to be on this work permit, which has a cap of 65,000 per year. The applications are accepted via a lottery system, with an annual limit of 65,000 visas each fiscal year, as mandated by the Congress.

Another 20,000 visas are exempt for the cap and reserved just for foreign students who hold advanced (master’s or above) degrees from American higher education institutions, according to the existing rule.

Valid for three years, the H1-B visa can be renewed for another three years. H-1B workers must hold a bachelor’s degree or higher. Competition is tough for temporary visas, especially with the cap of 65,000.

In 2018, the Department of Home land Security informed that they had hit the cap limit by the first week of April itself.

New rules

The US Citizenship and Immigration Services (USCIS) in December released a proposal to give precedence to the highest paid and most skilled/educated foreign workers in the H-1B visa intake process.

All applicants including those eligible for the advanced degree exemption will now be subject to the regular cap of 65,000 first. After that, the USCIS would select from the remaining applicants to fill the degree cap.

This means that the lottery phase will go ahead without a full petition; submission of supporting documents will come after the random selections are completed.

Companies employing H-1B workers will have to pre-register with USCIS during a designated registration period.

Motivation behind the new rules

“The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first,” the DHS said about the proposal, adding that it is an alleged attempt to curb the annual overload that the USCIS faces.

“These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better,” US Citizenship and Immigration Services Director L Francis Cissna in a statement this week.

The new system is estimated to increase the number of beneficiaries in the lottery who hold advanced degrees by 16% or 5,340 workers each year, the citizenship and immigration services said. This rule change is in line with President Donald Trump’s assertions on merit-based migration.

The H-1B visa allows US companies to employ skilled workers from abroad. In the first two years of Trump’s presidency, the administration had made it difficult to issue new H1-B visas or grant extensions to those already holding the visas, as he continues to seek the limiting of legal immigration so as to foster his America First policy.

H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.— Donald J. Trump (@realDonaldTrump) January 11, 2019

The US President’s tweet from last no clarity on what the changes would mean to green card holders.

Last July, the Trump administration made it easier to reject H-1B visa applications. Live Mint reported that USCIS adjudicators would have full discretion to reject applications, petitions, and requests without issuing a request for evidence (RFE) or notice of intent to deny (NOID).

According to Indian IT trade body Nasscom, the H-1B visa-related changes could give the USCIS authority to initiate deportation proceedings if a person’s H-1B visa expires, even while he or she is waiting for an extension request to be adjudicated.

What does it mean for India?

According to immigration activists and lawyers, the proposed changes will tighten the entry criteria, set a higher bar for visa extensions, and threaten foreign workers who demand equal pay despite the booming economy. Many believe this is being done to increase the number of H-1B holders with advanced degrees by 16%, to ensure “more of the best and brightest workers from around the world come to America”.

Cracking down on the popular visa programme to implement Trump’s “Buy American, Hire American” strategy will take a toll on Indian workers as much as it would on the American tech sector. India sends 80% of the annual H-1B recipients.

It will also filter out more bachelor’s degree holders from the programme, while raising the probability of more US master’s degree holders occupying most of the total available slots in the first wave. According to official data, the number of new international students enrolling at American universities and colleges went down by almost 7% in 2017, owing to stringent student visa applications compounded by anti-immigrant messages.

“By increasing the chances of H-1B visas for people with advanced degrees from US institutions, the proposed H-1B pre-registration rule will shut out Indian H-1B holders with good bachelor’s degrees from Indian universities who could potentially contribute to the US,” tweeted US Immigration Attorney Cyrus Mehta in December.

Speaking to TOI after Wednesday’s announcement, he deems it unacceptable that even “a highly skilled IT worker with a bachelor’s degree in computer science from a reputed Indian institution such as the Indian Institute of Technology, will have less chance of getting an H1-B visa in the new proposal.”

Conversely, this move might encourage more students to pursue higher education in the fields of science, technology and engineering in the US. This will in turn require additional staffing and development of new and advances STEM academic programmes in the US, resulting in more jobs for US workers.

According to another notification issued by the DHS last year, the US administration also wished to revoke work to certain categories of H-4 visa holders. H-4 visas are issued to the spouses of H-1B visa holders. Issued by the Barack Obama administration in 2015, it helps H-1B spouses gain employment in the US.

There is no update on that front as of yet.

Prarthana Mitra is a staff writer at Qrius

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