NEW YORK – The Trump Administration has proposed massive changes to the H-1B visa system, in 2019. A key highlight of these likely changes – which is bound to see a drastic reduction of skilled workers coming in directly from overseas to take up jobs in the US – will benefit greatly foreign students who are either enrolled or have a post graduate degree from accredited US educational institutions, especially in the STEM fields of study.
The changes to the H-1B visa system are listed in the Unified Fall Agenda by the Department of Homeland Security (DHS), released on October 17, 2018. The Agenda is published twice a year by the US government, and lists all the short-term regulatory changes they are likely to put into effect. The changes do not require the approval of Congress.
Of special interest to foreign students in the US, or those who have a master’s degree or higher, would be an ‘H-1B Cap Electronic Registration’ for the annual lottery. This would most likely be implemented from April, 2019.
The DHS states: “Consistent with the Buy American and Hire American, EO 13788’s direction to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries, this regulation would help to streamline the process for administering the H-1B cap and increase the probability of the total number of petitions selected under the cap filed for H-1B beneficiaries who possess a master’s or higher degree from a U.S. institution of higher education each fiscal year.”
Every year, a total of 85,000 H-1B visas are allocated to foreign workers, of which 20,000 are guaranteed for those who have a post graduate degree from the US, with the other 65,000 going to workers who come directly from overseas. Last year, skilled workers from India got 70% of those 65,000 visas. If applications for the master’s cap exceed the 20,000 quota, then they are pooled with other lottery applicants, in the general category.
According to a Politico report, quoting an unidentified DHS official, the United States Customs and Immigrations Services (USCIS) would in the next lottery put all the master’s cap applicants in the general 65,000-visa pool. If that cap were reached, any additional advanced degree holders would be redirected to the 20,000-visa pool.
The administration expects the change could lead to a 15 percent increase in H-1B visa holders with US advanced degrees, said the Politico report.
The move would align with President Trump’s “buy American, hire American” executive order, which called for H-1B reforms to ensure visas go to “the most‐skilled or highest‐paid petition beneficiaries.” The Trump administration plans to publish the proposal later this month.
In effect, what this means is that if 85,000 students with a master’s degree from the US were to apply for the next H-1B lottery, in 2019, and if all are found to be eligible for the job they are sponsored for, then not a single skilled worker from overseas would be get a foot in the door, to work in the US; would be stymied right at the application stage.
The ‘Electronic Registration’ has another far-reaching consequence which will likely hit hard Indian IT services companies who every year rely on a fresh pool of workers from back home to do contract work in the US, at different locations.
Under this system, the DHS will first vet each application before deeming it fit or not to go into a lottery system. With the discretionary powers they have, and little accountability, what it means is that in all likelihood a huge number of applications are likely to be rejected outright even before they reach the lottery stage.
The good news for the really skilled and talented worker from India is that he stands a better chance of being processed for a work visa after the weaning and weeding is done of the chaff of workers who don’t pass scrutiny.
While this is definitely good news for foreign students, there’s also the anomaly of high wages to be paid for specialty occupations, which may suggest that there are other vested interests at play here by the Trump Administration (read that as cutting down on H-1B visas in a roundabout way).
The government wants all H-1B visa workers to be able to only work in a ‘specialty’ occupation, with top notch wages, to match, if not exceed industry standards.
This is dealt with in a section titled ‘Strengthening the H-1B Nonimmigrant Visa Classification Program’, and says: “The purpose of these changes is to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.”
In effect, a lot of students who are from non-STEM areas of study are going to be rejected in the ‘Electronic Registration’ stage, and even those who pass muster under STEM, will then have the tedious task, as well as their employers, to prove that he or she is the only person available to do that job, that there are no American workers available for it, and will be given a salary which will be as high as anybody else with the same skill levels.
Question is: how many newbie post graduates are going to be seen as specialty workers, and given a salary which would be equal if not higher to what an American worker is getting? Go, figure.
Another DHS proposal also makes it clear that going forward, only in all likelihood only very few overseas workers will excellent academic and work profile would qualify for an H-1B visa.
Reports have recently surfaced of lawsuits over H-1B visa stamps for only two weeks, and in many other cases less than a month, rather than the 3-year period it’s supposed to be for.
The DHS says it will “revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals” and “revise the definition of employment and employer-employee relationship to better protect US workers and wages.” It will try ensure employers pay appropriate wages to H-1B visa holders”.
The purpose is to “ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the US workforce and strengthens US worker protections”.
Also, of interest to foreign students is a new rule in the offing which would now give a precise date for expiry of their F-1 visa. Earlier, there indeed was confusion as to how long they could stay beyond the expiry of their visa, what with the Optional Practical Training period also coming into play.
The section titled ‘Establishing a Maximum Period of Authorized Stay for F-1 and Other Nonimmigrants’ states: “the failure to provide certain categories of nonimmigrants with specific dates for their authorized periods of stay can cause confusion over how long they may lawfully remain in the United States and has complicated the efforts to reduce overstay rates for nonimmigrant students. The clarity created by date-certain admissions will help reduce the overstay rate.”
Also, DHS is putting the onus on school officials to ensure that they have the records of students in place. The section entitled ‘Eligibility Checks of Designated School Officials of Schools That Enroll F and M Nonimmigrant Students’ says that the rule would help DHS prevent potential criminal activities or threats to national security.
H-4 visa work permits to be rescinded
The DHS has again iterated their decision to soon rescind all work permits given out to H-4 visa holders.
Under the section ‘Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization’, the DHS says: “DHS is reviewing the 2015 final rule in light of issuance of Executive Order 13788, Buy American and Hire American. DHS anticipates that there would be two primary impacts that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”
It’s likely that the H-4 work permits, which are being used by around 100,000 individuals – spouse of H-1B visa workers – most of them women and from India – will be ended come March, 2019.
According to a PTI report, India on Thursday, October 18, said it was “closely engaged” with the Trump Administration as well as the US Congress on the matter of H-1B visas. The comment by the Spokesperson in the Ministry of External Affairs (MEA) came after Washington said it is planning to “revise” the definition of employment and specialty occupations under the H-1B visas by January, a move which will have an adverse impact on Indian IT companies in the US.
“It is a very important topic for us and that is the reason why time and again, at different levels, we have taken up the matter with the US side. Most recently, it was discussed and mentioned during the two-plus-two talks,” MEA Spokesperson Raveesh Kumar said, the PTI report said.
“It is indeed correct that the administration has taken measures to prevent abuse of this program and there are certain bills which have been introduced,” Kumar said. “I think what we get to hear are the provisions from those bills, but it is important to note that none of these bills have been passed so far,” he added.
Kumar said that, during discussions, India conveyed to the US the contribution made to the growth and development of the US economy by highly skilled Indian professionals.