On H-1Bs, Trump hits Indians really hard

RAJKAMAL RAO | Updated on January 08, 2018

Tough talk Solid action   -  Reuters

The new policy won’t be overturned because US judges defer to the agencies of the executive branch to interpret laws

On August 16, 2015, the then-candidate Donald Trump released his immigration plan. The five-page document was explosive in its assessment of the H-1B programme. “Two-thirds of entry-level hiring for US IT jobs is accomplished through the H-1Bs,” it started. He sought to bring back a requirement for companies to hire American workers first saying that too many visas, like the H-1B, have no such requirement.

At the time, no one thought much of Trump’s assertions because no one thought he would win the presidency. Now the agency responsible for the issuance of H-1B visas — the US Citizenship and Immigration Services — has released a strong policy memo, effective immediately, which reversed more than 13 years of procedures regarding the renewal of H-1B visas.

So what changed?

To understand this, it is important to understand what the H-1B visa is and why it is issued. US immigration laws recognise that employers run into situations when they can’t find competent Americans within their ranks to fill open jobs. Rather than let American commerce suffer — causing hardships to customers, current co-workers and shareholders — the law provides for companies to bring in qualified individuals from abroad to temporarily work in the United States. Such individuals are issued H-1B visas.

With the expansion of the global economy and outsourcing, and increase in students pursuing US higher education during the last two decades, the H-1B has been the preferred route to green cards. This happened in part because both the Bush and Obama administrations took a rather lenient view in interpreting immigration law.

The underlying law, however, is rather strict. It requires H-1B beneficiaries to “have education, training, and a recognition of expertise in the specialty through progressively responsible positions directly related to the specialty”.

In other words, these recipients must be the “best and brightest”. Once an H-1B is issued, it is valid for three years. This time period is deemed long enough for the American employer to find an American resident to be trained and hired into the company. At that point, the reasoning was that the H-1B beneficiary could return to his country. But H-1B holders rarely returned. Instead, they (or rather, their employers) routinely applied for extensions of their H-1Bs although business conditions under which the H-1Bs were originally granted may have changed. Perhaps labour shortages in the speciality no longer existed. Perhaps the company’s priorities or product lines changed no longer requiring employees with the specialised skillsets as declared in the initial petition. Under the Bush/Obama USCIS, H-1B extensions were granted as a formality. Further, the burden of proof to determine if business conditions still merited a visa renewal fell to USCIS, and not the beneficiary. The Trump USCIS ruled that this was not only contrary to the law as written but it was also “impractical and costly to properly implement”.

A question of interpretation

Trump has been extremely successful in changing numerous Obama-era rules although he has little support in Congress to have new laws passed. He is brilliant in realising that US laws are complex and rules entered into the Federal Register run into tens of thousands of pages. To achieve his campaign promises, all he has to do is to interpret existing laws differently to meet his need. Most federal judges defer extensively to the agencies of the executive branch to interpret laws and issue rules. So, the new policy has little chance of being overturned in the courts.

For the average H-1B renewal applicant, the new policy can create numerous headaches. He has to obtain strong paperwork from the company (perhaps from a different supervisor who may not be as supportive) to substantiate why a renewal continues to be necessary. He can no longer rest on the laurels of the original grant because a renewal will now be deemed to almost be a brand new H-1B request. The new Trump policy is explicit here. “At the time of filing the petition extension, [regulatory provisions] do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. The burden of proof in establishing eligibility is, at all times, on the petitioner.”

More than a half million Indians are estimated to be on their first H-1Bs and each one of them would be impacted. If renewals are not granted, they will be forced to go home losing out on a chance to apply for a green card. Each one of these “recovered” jobs, Trump believes, will then open up to American workers. For thousands of Indians hoping that Trump was just another politician who ran on a nationalist platform simply to win, this policy change is yet another reminder that Trump means business. He has held strong views for decades and his lieutenant at the department of justice, Attorney General Jeff Sessions, is even more nationalist than he is.

The large Indian IT majors have already factored in these changes in their plans. The real losers may be small-time H-1B employees, including under-performing Indians who came to the US to study and settle down. This is why External Affairs Minister Sushma Swaraj pleaded her case with her US counterpart saying that such decisions will profoundly impact Indians. These are indeed rough times.

The writer is MD of education consultancy Rao Advisors LLC

Published on October 27, 2017

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