LEGAL IMMIGRATION IN THE U.S. -THE PROVISION OF H-1B VISA

What is H-1B Visa

The H-1B visa is a non-immigrant visa of the United States of America under the Immigration and Nationality Act, section 101(a)(17)(H). The H-1B visas are allocated to skilled workers from outside America for different specialised fields of occupation for a period of time. The period of time allowed to stay under the provision is three years which can be then extended to six years. The provision of H-1B visa permits U.S. employers to hire workers from foreign countries in specialty occupations provisionally. The guidelines on the H-1B define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to biotechnology, chemistry, architecture,engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum. Likewise, the foreign worker must possess at least a bachelor's degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.The law limits to 65,000 (in number) of foreign nationals who may be issued a visa or otherwise provided H-1B status each fiscal year. Laws exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.The process of allotting the Visa is random and through a process of lottery.

Each year, mostly on April 1, the H-1B season commences for the following federal fiscal year; employment authorizations are granted on October 1. Due to a pre-employment application limit window of six months, the first weekday in April is the earliest that an applicant may legally apply for the next year's allotment of cap-subject H-1B. H-1B “cap cases” are delineated on the envelope’s label, preferably in red ink, with “Regular Cap” for the bachelor’s degree, “C/S Cap” for H-1B treaty cases and “U.S. Master’s” for the U.S. master’s degrees or higher exemptions publishes a memo when enough cap-subject applications have been received, indicating the closure of cap-subject application season, the associated random selection process is often referred to as the H-1B lottery. Those who have the U.S. master’s exemption have two chances to be selected in the lottery: first, a lottery is held to award the 20,000 visas available to master’s degree holders, and those not selected are then entered in the regular lottery for the other 65,000 visas. Those are entered only in the second, regular, lottery.

H-1B Reform Bill

On 3rd March 2017, the U.S. Citizenship and Immigration Service has announced that there will be a temporary suspension of the processing for H-1B visa starting from 3rd April 2017 until any further notice. To make it difficult for employing foreigners the US Congress introduced the H-1B Visa Reform Bill in January this year. The Bill lays out certain regulations to the provisions in the H-1B visa. It forbids companies from hiring H-1B employees when they have already employed more than 50 people and if there are more than 50 percent of their employees are H-1B and L-1 visa holders.The Bill aims that there will be more employment of American workers and will limit the massive import of H-1B and L-1for short training periods and then send them back to their country. Thus, enabling more Americans to do the work. It also clearly disallows replacement of American workers by H-1B or L-1 visa holders. The Bill seeks to give the Department of Labour enhanced authority to review, investigate and audit employer compliance as well as to penalize fraudulent or abusive conduct. The High Skilled Integrity and Fairness Act, introduced by Congressperson, Zoe Lofgren, of California, would raise H-1B holders’ minimum salaries to U.S. $130,000. The Bill aims to do away with the Master’s degree exemption as it is considered that workers from abroad can easily obtain these degrees. The key provisions of the Bill are thus increasing the salary and the exemption of the Master’s degree.

The bill comes after different companies like Disney, SoCal Edison and others have come under the radar for abusing the provision of H-1B Visa. Issa, who is one of initiators of the reform bill said, “for America to lead again, we need to ensure we can retain the world’s best and brightest talent. At the same time, we also need to make sure programs are not abused to allow companies to outsource and hire cheap foreign labor from abroad to replace American workers. The legislation we’re introducing today does both. It will ensure that our valuable high-skilled immigration spots are used by companies when the positions cannot be filled by the existing workforce.”

The rationale to raise the salary as cited by the legislators was that this would make the salary in line with the average American salary for these specialised positions and in turn, will remove the profit incentive and enabling the positions for those who need them.Congress man Scott Peters believes that the reform bill will curb the abuse of the H-1B system and will secure the American jobs and will thus make these positions available for innovators who require them to maintain a competitive workforce. The bill aims to level the playing field and restrain the companies from taking advantage of the system to offshore jobs. Senator Cotton believes that the bill has brought the focus back to the process of legal immigration in U.S. and how far the immigrants contribute to the economy. He also believes that the Bill makes sure that the government is focused on Americans getting back their jobs with higher wages which are supplemented with immigration on a need-based evidence.

Consequences of the Reform Bill

This raise in the salary from $60,000 to $130,000 will reverse the extensions granted by the previous Obama administration to the ‘Optional Practical Training programme’ for the foreign graduates in the U.S. and will also institute a rigorous monitoring system for the companies which uses L-1 and H-1B visas. Not only the reform bill of H-1B visa will affect the foreign skilled employees in the U.S. but there are two bills at least which have been introduced in the House of Representative aiming to tighten the conditions for skilled-worker visas that are, in the government’s view,costing the job of Americans.

Effects on Indian Companies of the Reform Bill

The reform bill will have an effect on the bilateral relationship between the India and U.S. bilateral relationship. Any hike in the minimum salary for the specialised jobs will hit not only the Indian IT firms but also the tech titans of Silicon Valley, including Microsoft, Google and Facebook.This can have a side-effect on the U.S. economy, and there will be difficult to find mid-level jobs with qualified Americans. Senator Lerma of Mexico suggested that such changes in the visa provision will have a counter effect on the state of U.S. economy as around 60 percent of IT persons in the Silicon Valley belong to India and such restriction will have a devastating effect on the state IT industries in the country.

This restriction on the H-1B will hurt the Indian businesses that will incur more operational costs and will face a shortage of skilled workers for Indian out sourcing companies. Indian companies have been the largest to be given such visas. Counterfactually, if IT companies which are base din foreign countries like India find it difficult working in such environment, they will likely off shore their operations totally which will lead to losing of jobs for Americans. The Indian IT companies argue that the Bill imposing restrictions to H-1B visa do not look at the root causes of the problem for bringing skilled workers from outside America which includes the problem of a limited number of STEM skills in the U.S. Shivendra Singh, Vice President and Head, Global Trade Development at Nasscom pointed out that it is highly flawed perception that companies pay low salaries to the people who are sent on the H-1B visas. Rather,high-skilled IT workers on temporary visas earn competitive salaries and cost their employers as much or more than their American counterparts.

Apart from the visa curbs, the U.S. had also recently hiked the visa fee for certain categories of the H-1B and L1 visas which have had an impact on Indian companies.

The current situation of the Reform Bill

However, the U.S. Citizenship and Immigration Services (USCIS) authority announced on 18th March that there would be no changes in the provision for the allotment of H-1B visa for this year. The USCIS will start accepting applications for H-1B visas for the fiscal 2018 starting April 3, 2017. There will be no change in the Congressional mandate of 65,000 H-1B visas limit for the general category. Also, the 20,000 limit for international students who have done masters or higher degree from a U.S. academic institution too stays for the fiscal year of 2018. However,the USCIS has not come up with the period till when they will accept the visa application.

No last date was given for accepting visa applications. The USCIS release of this year only specified that the agency will monitor the number of petition received and will notify once the cap for H-1B has been met. The fiscal year 2018 will begin on 1 October 2017. The new season for applying for the H-1B visas traditionally starts on April 1, and the visas are granted from October 1. And all H-1B petitions filed before April 3 for FY 2018 will be rejected.

What holds in the future of H-1B Visa is still uncertain but for a year there will be no change in the provisions. White House believes that immigration is a problem that needs to be seriously tackled with but the intensity of the problems should decide what shall be tackled first. Hence, the White House is more concerned with dealing the problem of illegal immigration which led to the imposing of the travel ban from selected countries. As U.S. is the most powerful economy of the world, it becomes natural for people from less developed parts to go to the country to earn money. With the plans for revising the provisions for H-1B will surely lead to closing of avenues for many for a better jobs.