H-1B visa regime is likely to get tougher as Department of Homeland security mulls stricter restrictions on selection

BENGALURU: In further bad news for Indian professionals looking to work in the US, the Department of Homeland Security is readying a proposal that will make getting an H-1B tougher. It is looking to impose stringent restrictions on the H-B petitioners' selection process.

International immigration firm Fragomen's latest update on its website said the DHS has indicated it may revive a 2011 proposal that would require H-1B petitioners to preregister for the H-1B cap lottery and to submit cap petitions only after they have won cap numbers. "The DHS also plans to propose a priority system for allocation of H-1B cap numbers which would give priority to the most highly-paid and highly skilled, consistent with President Trump's 'Buy American, Hire American' executive order," it said in its update.

Desi IT cos largest users of H-1B, non-immigrant visa
DHS announced the proposals in an update to its semi-annual regulatory agenda. It may also consider changes to H-1B wages.

Scott J Fitzgerald, partner in Fragomen Worldwide, said changes to the H-1B cap lottery system are not scheduled to be announced till February 2018. If such changes are announced under the standard process that allows for ‘Notice and Comment’, which typically takes several months, then the changes won’t go into effect in time to cover the upcoming cap, under which filing begins in April 2018, he said.

Fitzgerald said if these provisions are introduced as an emergency rule — which waives the notice and comment requirement — then it could be covered in the next cap filing season. “This would be a real disaster for many companies as they either may not need to file cases already prepared (if there is a new “pre-registration” system) or they may not want to file many such cases, as many would be very unlikely to be selected under the new selection system,” he added. Indian IT firms are the largest users of H-1B visas and non-immigrant visas that allow US firms to temporarily employ foreign workers. The US Citizenship & Immigration Services (USCIS) triggers a lottery system to select petitions needed to meet the caps of 65,000 for general category and 20,000 for advanced degree exemption.

Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School, said the USCIS had done a lot already in the past few months to make it harder to qualify for H-1B visas. “The percentage of H-1B cases receiving a request for evidence has doubled to 41%. The USCIS is questioning whether some computer positions require a bachelor’s degree,” he said.

Yale-Loehr said the USCIS is taking longer to approve H-1B petitions and State Department consulates are screening H-1B visa applications more carefully than before. “All in all, it is harder than ever to get an H-1B these days,” he said.

The Trump administration claims its immigration overhaul targeting H1-B visa holders is to deter H-1B visa fraud and abuse. This, experts believe, will restrict free movement of talent due to fiery protectionist policies. Vivek Wadhwa, distinguished fellow at Carnegie Mellon University Engineering , said there is little doubt that Trump is determined to keep immigrants, both skilled and unskilled, out.