Under pressure from the tech industry, the Trump administration appears to be backing off on a proposed regulation that would ban extensions of H-1B visas and force more than half a million Indian temporary workers to “self-deport.”
“Trump cannot just decide not to grant extensions. There must be a rational basis to evoke a ban,” prominent Indian American immigration attorney Cyrus Mehta told India-West. “When we have a full employment economy, it is difficult to understand why the administration is attacking immigrants who contribute to our economic success,” he said.
“This is thinly-disguised white nationalism,” asserted Mehta.
McClatchy Newspapers reported Dec. 30 that the administration was considering changes to Section 104 (c) of the “American Competitiveness in the 21st Century Act,” passed by Congress in 2000, which mandates a 3-year extension for H-1B visa holders beyond a six-year limitation, if the holder has an approved application for a green card in place. The announcement caused panic within the tech industry and the large population of H-1B workers currently employed in the U.S. (see earlier India-West story here).
But on Jan. 9, McClatchy reported that the Trump administration appears to have reversed its position. U.S. Citizenship and Immigration Services Chief of Media Relations Jonathan Withington told McClatchy: “USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the six-year limit.”
Withington left room for the administration to change its mind once again, adding: “Even if (we) were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under Section 106(a)-(b) of AC21 instead.”
“Any suggestion that USCIS changed its position because of pressure is absolutely false,” he stated. McClatchy, however, citing multiple sources, said the administration had shifted course over the past two weeks because of pressure from the business community.
Reps. Tulsi Gabbard, D-Hawaii, and Kevin Yoder, R-Kansas, both members of the Congressional Caucus on India and Indian Americans, sent a letter to Trump Jan. 5, urging him not to make changes to AC21.
“The H-1B visa program is not designed to replace American workers with foreign workers, it is designed to augment the American workforce in specific areas where demand is high and gaps in skill sets exist,” wrote Yoder and Gabbard in the letter, which was posted to Gabbard’s Web site.
“H-1B visa holders are permitted to apply for permanent residency, but due to chronic application backlogs, their permanent residency status is frequently not determined until after their H-1B visas are set to expire. They must therefore rely on the granting of these extensions until their applications can be adjudicated. Removing this benefit will result in a tremendous loss of skilled labor that greatly benefits our economy,” explained Yoder and Gabbard.
Current wait times for Indian H-1B visa holders seeking a green card range from 70 to 82 years because of per country limits, which cap green cards from each country to no more than seven percent annually. Thus, theoretically, an H-1B employee can spend his entire career in the U.S. on a temporary visa.
“It is bad policy to deny extensions to people in the green card backlog,” Mehta told India-West, adding that the ban would have a terrible impact on the U.S. economy. “These are people with highly sought-after skills needed in today’s labor market. To attempt to replace them with U.S. workers may be very difficult for American employers,” he added. “This is a no win situation.”
Should Trump prevail on an extensions ban, lawsuits would immediately be filed asking for a preliminary injunction which would be granted, predicted Mehta. “It will take years to implement a ban,” he said, adding that people should be prepared to litigate.
Throughout his presidential campaign and first year in the White House, Trump has vilified the H-1B program. “The H-1B program is neither highly-skilled nor immigration: these are temporary workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay,” said Trump on March 4, 2016, vowing to end the use of the H-1B visa as a “cheap labor program” and mandating that American workers must be considered first.
After the initial McClatchy report, several Indian American community leaders denounced the controversial proposal. Sanjay Puri, founder and chairman of the U.S.-India Political Action Committee, told India-West the proposed ban on extensions would effectively block innovation in the U.S.
“The U.S. is the global leader in innovation where driverless cars, robotics, machine learning, and block chain technology is created,” said Puri, noting that U.S. innovation has greatly impacted health, safety, and productivity throughout the world.
Innovating companies need talent, said Puri, stating that the U.S. does not graduate enough students in science, technology, engineering, and math.
“The most innovative companies in the U.S., like Google and Facebook, are using this program responsibly for addressing the talent gap that they face in terms of dealing with the constant evolution of technology. These companies are not using it to hire cheap labor,” stated Puri.
“If the Trump administration expects to produce 4-5 percent economic growth then they will need to address the issue of ‘War for Talent’ that is going on with most of these innovative companies, especially in Silicon Valley, he told India-West.
Rep. Raja Krishnamoorthi, D-Illinois, also denounced the proposed ban. In a statement forwarded to India-West, the freshman congressman said: “We are currently facing a skills gap of over six million jobs, and companies are struggling to find talent to fill these open positions. Ending H-1B visa extensions would kneecap our economy and encourage companies to further offshore jobs, instead of making those investments here,” he said.
Rep. Ro Khanna, D-California, tweeted: “This Trump policy is not about fairness to American workers. It’s anti-immigrant.”
The Hindu American Foundation also denounced the proposed ban. “With unemployment at record lows and severe shortages of labor to fill skilled technical positions, this proposal is certain to cripple the efficiency and growth of American businesses,” asserted Suhag Shukla, HAF executive director and legal counsel.
The U.S.-India Business Council, an initiative of the U.S. Chamber of Commerce, also denounced the proposed ban. “It would be tremendously bad policy to tell highly skilled individuals who are applying for permanent residency and have been working in the U.S. for several years that they are no longer welcome,” the chamber said in a statement.
“This policy would harm American business, our economy, and the country,” said the organization, noting: “This is inconsistent with the goals of a more merit-based immigration system.”