New Proposal Restricting H-1B Program Could Led To Legal Challenges  
New Proposal Restricting H-1B Program Could Led To Legal Challenges  

Any move by the Trump administration in the US to curb the H-1B visa program could lead to legal challenges according to industry experts and immigration lawyers.

In addition to Indian IT companies, large American tech firms like Google and IBM are also likely to get affected by this measure. According to experts, such companies employ several workers on H1Bs visas with many awaiting Green Cards for a decade or more. Many of these workers are senior or mid-level managers.

These companies may file legal suits against the US government in order to protect such employees, experts said.

Mukesh Aghi, president of the USIndia Strategic Partnership Forum, pointed out that the reported proposals were only rumours currently and no official directive has been so far issued. He added that the “tightening H-1B is discriminatory” and may have an impact on the broader relationship between the two countries.

Raja Lahiri, partner for transaction advisory services at Grant Thornton India, similarly said that the move would be a “downside” for businesses and is likely to have a “socio-political impact”.

Extension Barred For H-1B Visaholders With Green Card Applications

US news agency McClatchy reported earlier this week a proposal from the Department of Homeland Security would seek to limit the number of foreign workers receiving extension to H-1B visas when their Green Card applications were still pending.

The news report stated that such a measure will lead to “self-deportation” of several thousands of Indian technology workers from the US which may “open up” these jobs for Americans. The report noted that the proposal was a part of the ‘Buy American, Hire American’ executive order signed by Trump last year.

Shivendra Singh, vice-president of Indian IT lobby group Nasscom, added that the proposal was the latest of the moves to  “impose more onerous restrictions on the H-1B visa programme”.

He observed that such efforts were driven “by myths and emotions, not facts and logic.” He pointed out that not extending visas for those H-1B visaholders with pending Green Card petitions “makes no sense”  and would be harming US businesses as well as involved individuals and families

Singh additionally observed that asking people to leave just because the US government is unable to adjudicate their green card applications in “a timely fashion” was similarly not sensible.

He also pointed out that in 2016, 13 STEM jobs were posted as available online in the US for every unemployed worker in that category, or in other words around 3 million more jobs than the number of people available.

Visa Regime Tightening

In the past year, the Indian IT industry has been experiencing the effects of the US tightening its visa regime, with increased scrutiny of applications and higher rejection rates.

Last month, the US repealed an Obama-era law that allowed spouses of H-1B visaholders awaiting Green Cards to work in the US. The Trump regime is also planning on reviewing the existing lottery system of visas allotment by defining special categories wherein  H-1B visas can be allowed.

According to Immigration lawyers while measures such as curtailing work by spouses and increasing visa fees may be implemented, the proposal to ban extension of visas for Green Card applicants may not take place.

Large Tech Companies To Be Affected

Poorvi Chotani, managing partner at LawQuest, an immigration law firm with offices in the US and India pointed out that such a measure would impact over 5 lakh people working in companies such as IBM and Google who have  “huge lobby budgets and the power to litigate” against the US government .

Chotani further noted that typically when a H-1B visaholder has a tenure of six years in the US, an employer submits his application for a Green Card.

Such applications can take nearly two years to be approved, and the final Green Card usually takes several more years since every country has a set quota and for India and China it can be up to 10-12 years to free up the quota.

In this scenario, he noted that the proposal would “pose huge practical problems” as the applicant may no longer be in the same job/ position or in the same location after 10 or more years when the final Green Card is finally allotted.

According to Nasscom, the recent spate of restrictions has resulted in a drop of nearly 50% applications from Indian outsourcing companies .

Additional Restrictions Under New Bill HR 170


A recent bill passed by the House Judiciary Committee, the Protect and Grow American Jobs Act (termed as HR 170), is another major cause for concern. The legislation is current awaiting nod from the US Senate.

Under the HR 170 Bill any company having over 15% of its workforce working onsite will be classified as “visa dependent”. Such companies must mandatorily increase the minimum salary set for H-1B visaholders , raising it from $60,000 to $90,000. They are also barred from moving employees on visa from one client to another.

The Clients must certify that the visaholder is not replacing an existing employee for the full tenure, which could be six years.

Calling these terms as “onerous” , Nasscom is raising the issue with higher authorities in both India and the US.


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