As Trump tightens the noose around H-1B visa applications, much heartburn ensues

The uncertainty looming over the future of the H-1B visa is worrisome for Indian technology firms and techies.

In a move that could affect Indian techies eyeing an entry into the United States, the U.S Citizenship and Immigration Services (USCIS) under the Trump Administration, has tightened H1B visa rules making it more difficult to get an extension. As per the changes, the burden of proof now lies on the applicant, even in the case of an extension. This is a reversal of the previous memorandum on the H1B visa extension from April 2004 which placed the burden on the Federal agency.

As per the new memo, immigration officials will need to apply the same level of scrutiny for an extension as they had to the initial request. This announcement also comes in the wake of External Affairs Minister Sushma Swaraj’s request to U.S Secretary of State Rex Tillerson that the United States must not take any decisions which would adversely affect Indians. Union Minister of Commerce and Industry Suresh Prabhu has also raised the issue with the US, asserting that the US economy will find it difficult to cope with the reality as the US has immensely benefitted from Indian IT professionals working there.

It has been close to a year since President Donald Trump rode high on the back of his election win. During his presidential campaign, President Trump had sought to place limits on legal immigration and guest-worker visas, with his policy being to put Americans first and ensuring that local jobs are not taken away by foreign workers. Trump had also been vocal about his disapproval of the H1B visa.

In a statement in March 2016, Trump had asserted, “The H1B programme is neither high skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay.” Since taking charge, Trump has brought about changes to visa and immigration policies that have made travelling to and working in the US more difficult for Indians and other nationalities who have been using the H-1B visa route.

H-1B flip-flops over the past one year

The H1B visa is a programme that allows US employers to employ foreign workers in specific occupations. This route has primarily been used by Indian tech workers and Indian companies account for a large percentage of the 85,000 H-1B visas issued every year. The USCIS uses a lottery system to determine which applicants are selected to be one among the 85,000 H-1B visa holders.

In January 2017, soon after Trump assumed office, a bill backing key changes in the H-1 B programme was reintroduced in the US Congress by two lawmakers. Titled the ‘Protect and Grow American Jobs Act’, the bill proposed to make changes to the eligibility requirements for H 1B visa exemptions. Apart from proposing that the minimum salary be increased to USD 130,000 – more than double the earlier minimum of USD 60,000 which was in practice since 1989 – it also sought to eliminate the Masters Degree exemption.  Worried, Indian government officials and IT firms met up with Trump administration officials to present their cases and dissuade the administration from hiking up the minimum wage requirement.

In March, this year, the US temporarily suspended the premium processing of H-1B visas, causing much tension to applicants. The US Citizenship and Immigration Services (USCIS) mentioned on its website that this was to clear the backlog in processing H-1B visas. In the premium visa processing route, applicants can get their H-1B visa processes fast-tracked by paying an extra fee of USD 1,225. The regular process takes six months, during which the applicants can’t travel or change jobs. Most companies hence opt for the premium processing route.

According to an analysis by Associated Press, computer science graduates, who account for a major portion of the H-1B visa chunk, receive 9 percent lower wages than US workers in similar positions. This has led to situations where companies have replaced American workers with H-1B visa holders at cheaper costs. In a bid to counter this, Trump signed an Executive Order to ‘buy American Hire American’ in April, this year. The order directed federal agencies to change the temporary visa programme to ensure that preference is accorded to the ‘most-skilled and highest paid’ and ‘never, ever be used to replace Americans’.

Post the Executive Order, Indian companies with US ops reported an increased trend in scrutiny, documentation and request for evidence (RFE). According to Reuters, between January 1 and August 31, 2017, the USCIS issued 85,000 RFEs on all applications, which is a 45 percent increase from last year. The process is lengthy and costly, hence prompting many companies to complain about unnecessary harassment.

In June 2017 the US Labour Secretary, Alexander Acosta called for increasing the minimum salary of foreign workers on H-1B visas from the existing USD 60,000 to USD 80,000. This, according to the Secretary, would help address the issue of Americans being replaced by cheaper labour. However, from October 2016 to July, this year, Indians still remained on top of the H-1B aspirant’s pools with 2.47 lakh applicants out of a total of 3.36 lakhs. IT firms Cognizant, Infosys, TCS, Accenture and Wipro were the top five firms to whom visas were granted.

In a major relief to IT companies and techies, five months after suspending its premium visa processing, in September, this year, the US resumed visa processing under the fast track route for all H-1B visa petitions subject to the Fiscal year 2018 cap, which has been set at 65,000. This relief did not last long though, with the United States Homeland Security recommending tighter verification processes for the USCIS.

While the US had accused Indian firms such as Infosys and TCS of cornering a lion’s share of the H-1B visas by putting extra tickets in the lottery system, other firms such as Cognizant and HCL Tech have reported that they are looking to hire more locals and reduce their dependence on H-1B visa applications. A majority of HCL Tech’s 12,000 strong workforce in the US are locals, the company said. Infosys also announced that it plans to hire 10,000 Americans in the next two years, to counter the visa woes.

With the current environment of uncertainty on H-1B visa applications, wealthy Indians have found another way to fulfill their American dreams. More Indian families are eyeing the EB-5 visa route or the investor visa, to move to the USA. While this visa comes at an exorbitant cost of over Rs 3 crores, it allows the investor to take his/her spouse and two unmarried children to the US. Where a regular citizenship procedure takes a minimum of seven years, with the investor visa, the applicant and family are granted citizenship in 18 months. The cost, however, is expected to go up from the current USD 500,000 to USD 800,000 post December.