Building bipartisan support

Rajkamal Rao | Updated on March 09, 2021

Pressure mounts to implement Trump’s H1-B plan

In his administration’s waning days, former US President Donald Trump issued a change to the H-1B visa lottery rule. Rather than grant visas at random, as has been the case for decades, the new rule prioritised handing H-1Bs out to employers offering the highest wage. The rule would have gone into effect on March 9, six weeks into the Biden administration.

President Joe Biden has spent most of his time in office unwinding Trump’s executive orders. His Homeland Security Director promptly announced that the rule’s effective date was not cancelled but postponed to December 31, 2021.

Nasscom has breathed a heavy sigh of relief. The visa lottery, scheduled for April 1, would go on as before. December 31 was a long way off, and lobbyists could help kill the Trump rule forever.

But two powerful senators, Dick Durbin, a Democrat and the current Chairman of the Judiciary Committee, and Charles Grassley, a veteran Republican former Chairman, urged Homeland this week to not postpone the rule and implement it immediately.

“The practical effect of this delay is that outsourcing companies will continue to game the lottery system and secure thousands of new H-1B visas for FY2022 since the H-1B filing season begins in a few weeks. This will facilitate these companies’ efforts to continue outsourcing American jobs. We urge you to expeditiously implement the rule,” wrote Durbin and Grassley, taking a Trumpian, America-first view.

While their move’s outcome is uncertain, it shows that certain elements of the Trump H-1B proposals have bipartisan support in the US Senate.

The original intent of the H-1B programme was to attract the “best and brightest” to America. US employers run into situations when they can’t find competent Americans to fill open jobs. Rather than let American commerce suffer, the law provided for companies to bring in qualified individuals from abroad to work in the US temporarily.

Attracting talent

But beyond allowing individual companies to bring in hot skills when needed, Congress also decided to invest in the longer term to benefit the US. It granted the H-1B, alone among an alphabet soup of visas, “Dual intent.” If the best and brightest decide to immigrate to America while already in America on a non-immigrant visa, America will welcome them with open arms.

Over the last three decades, things have not exactly worked out the way Congress intended. As the demand for H-1B visas soared and Congress refused to change either the new number granted each year (85,000) or the number of employment-based green cards, the government has had to resort to a visa lottery to issue H-1Bs.

The big tech companies flood the system with H-1B requests, confident that even with a low win ratio, they can still staff their onsite projects with low-cost labour.

International students with American graduate degrees lose out in this melee even when they are paid vastly higher by their employers, sometimes trying three lottery cycles. Still, not winning the coveted visa and returning to their home countries disappointed as their practical training visas expire. The problem? Their employer was filing for that one individual and not carpet-bombing Homeland with applications.

The Trump rule reinstated the “best and brightest” vision by requiring that the lottery algorithm be changed to grant H-1B visas to employers offering the “highest salaries.” In Washington, where the mood is thoroughly anti-Trump, it is surprising to see two senior bipartisan senators advocating for his rule after he left office in disgrace. For the many Indian IT companies addicted to H-1Bs, this is a gentle reminder that politics always does not drive policy.

The writer is Managing Director, Rao Advisors LLC, US

Published on March 09, 2021

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