The U.S. Department of Homeland Security is currently considering major regulation changes that would prevent extensions of the H-1B visa, according to reports.
Should the measure proceed, many highly-skilled workers in the program, hundreds of thousands of whom are of Indian origin, would lose their visas while their green card applications are pending, the Miami Herald reported.
The Herald, citing two U.S. sources briefed on the matter, said the proposal, being drafted in memos shared between DHS department heads, is part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign.
The administration is specifically looking at whether it can reinterpret the "may grant" language of the American Competitiveness in the 21st Century Act to stop making the extensions, the Herald said.
Currently, individuals in the H-1B program are allowed extensions beyond the allowed two three-year terms by the administration if the individual has a pending green card.
“The idea is to create a sort of ‘self- deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans,” said a U.S. source briefed by Homeland Security officials in the Herald report.
Officials at U.S. Citizenship and Immigration Services, which is under the DHS, said they can’t discuss “any part of the pre-decisional processes,” the publication said.
Jonathan Withington, chief of media relations at USCIS, told the Herald, “The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment-based visa programs.”
The proposal is part of a series of new regulations the Trump administration is taking at the same time a bipartisan group of lawmakers moves forward on legislation to tighten rules that award visas to H-1B holders, it said.
The administration also has announced plans to end work eligibility for spouses of H-1B holders (see earlier India-West story here). In addition, the administration is considering changes to the allocation of H-1B visas to give priority to more highly educated and skilled workers, the report added.
The publication noted while the H-1B issue doesn’t draw the same attention as other immigration-related policy deliberations, such as building a wall across the southern border, it is significant to American employers.
Although successive administrations have fiddled with the rules to make it difficult for U.S. companies to hire foreign workers, including hiking processing fees and minimum salaries, demand for H-1B remains unabated because the U.S. industry says America does not produce enough STEM graduates with requisite skill sets, the Times of India noted in a report.
Tech giants such as Facebook and other big companies, from Bank of America to Caterpillar, have long argued that the 85,000 annual cap on these visas is too low and that they need to bring in more foreign tech workers because they can’t find enough highly-skilled American workers, the report said.
Critics of the visa program, however, say that it is being abused and that American workers are being laid off as U.S. companies send work to outsourcing companies that employ thousands of H-1B workers, it added.
Trump in early 2017 signed an executive order calling for a review of the H-1B program in order to suggest changes to ensure the most skilled and highest–paid applicants receive H-1B visas.
John Miano, a lawyer who represents American workers who say that they have lost jobs unfairly to low-skilled H-1B visa holders, said in the Herald report that Trump can only do so much to fix the H-1B program, which he said should be scrapped.
“You can throw a dart at a random provision in H-1B and delete and probably improve the problem,” he said, adding that he would welcome limits to the number of years. He has proposed pulling back the number to even three years. But ultimately Congress would need to approve such a change, the report said.
The proposed changes would have a dramatic effect particularly on Indian visa holders, considering that more than half of all H-1B visas have been awarded to Indian nationals, according to the Pew Research Center.
In just the past six years, it is believed an estimated 255,000 Indian origin workers have been hired through the program. All told, anywhere from 500,000 to 750,000 Indian skilled workers could be affected by the proposal, according to multiple reports.
Lawyers who represent the workers and companies expect lawsuits to be filed if changes to the program were sought without Congressional approval.
“This would be a major catastrophic development as many people have been waiting in line for green cards for over a decade, have U.S. citizen children, own a home,” said Leon Fresco, who served as a deputy assistant attorney general for the Justice Department in the Obama administration who now represent H-1B workers, said in the Herald report.
Fresco estimates more than 1 million H-1B visa holders in the country are waiting for green cards, many of whom are from India and have been waiting for more than a decade, it said.
The latest move comes after the Trump administration began creating greater hurdles for H-1B visa holders to be employed and retained by their U.S. companies by dramatically stepping up its numbers of Requests For Evidence, according to an earlier India-West report.
Requests For Evidence – RFEs – issued by U.S. Citizenship and Immigration Services are demands for additional proof to determine whether an employee is eligible for an H-1B visa. Uncommonly this year, a greater number of RFEs have been requested of H-1B holders who are renewing their applications.
According to data from USCIS, towards the end of 2015, only 11 percent of H-1B applications were subjected to RFE scrutiny. More than 97 percent of applications were approved.
As of November 2017, USCIS has asked for additional evidence for almost 47 percent of H-1B applications, according to the agency’s own data. About 82 percent of applications have been approved.
Fremont, California-based immigration attorney Kalpana Peddibhotla has also noticed a huge spike in the number of requests for evidence for her H-1B clients. The Indian American lawyer attributes the phenomenon to USCIS incorrectly interpreting the qualifications necessary for the specialty occupation a company is seeking to fill.