Washington, DC – The United States administration is cracking down on fraud in the area of the popular American work H-1B visa program. Indian nationals are major beneficiaries of H-1B visas, which are non-immigrant visas allowing US companies to employ foreign workers in specific occupations.
The US Department of Homeland Security (DHS) recently released a proposal to increase the number of H-1B visa recipients who have advanced education, with master’s degrees or higher level degrees, and propose to move the registration process online.
The proposal states: “The Department of Homeland Security (“DHS” or “the Department”) is proposing to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted toward the 65,000 visa cap established under the Immigration and Nationality Act (“H-1B regular cap”) or beneficiaries with advanced degrees from US institutions of higher education who are eligible for an exemption from the regular cap (“advanced degree exemption”).”
Commenting on the new proposals, Devang Shah, an eminent attorney and partner in Shah & Kishore, an immigration law firm based in Maryland said, “The new system will create a rush of registrations and generate false H-1B demands since there it will be very easy and without cost for American employers to register a prospective H-1B employee. Employers may ultimately abandon selected applications or may not be qualified.”
It’s important to note that the public can weigh in on the proposed rule between December 3, 2018 through January 2, 2019. The proposal said: “All interested parties are invited to participate in this rule making by submitting written data, views, comments and/or arguments on all aspects of this proposed rule. DHS and USCIS (US Citizenship and Immigration Services) also invite comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule.”
Asked to comment on the ongoing process, a US State Department spokesperson told IAT, “The US Department of State continues to review employment-based visa programs in compliance with the mandate in the Buy American Hire American Executive Order, which states that the interagency “propose new rules and issue new guidance to protect the interests of United States workers, including through the prevention of fraud or abuse.” In an email statement, the spokesperson added, “The review is ongoing and there is currently no timeline on this process.”
From the start of his presidency, Donald Trump – in pursuing his policy of “Buy American, Hire American,” – has asked government agencies to reform the H-1B program to fight the rampant fraud therein.
There is a cap of 65,000 H-1B visas annually, with another 20,000 reserved just for people who hold advanced degrees from US higher education institutions. Incidentally, the demand every season for these visas often exceeds the supply, triggering a lottery system.
The details of the proposal by the DHS outlined changes in the selection process so that all registrations — including those from people who are eligible for the advanced degree exemption — are applied to the regular cap of 65,000 first. After that, the USCIS would select from the remaining to fill the degree cap.
Through this reform process, the government agencies are making an effort to increase the number of H-1B holders who have advanced degrees and ensure the best and brightest workers from around the world come to the country under the program.
The underlying purpose of the H-1B visa program – with a validity of three years and renewability for another three years – is to let US companies hire trained and professional talent globally that they can’t find at home here. Most of the small and large tech firms are commonly associated with H-1Bs, as they say they struggle to find right candidates for highly advanced jobs.
Moreover, the detailed proposal plans to modernize the registration process by moving it online, thus cutting on paperwork to enhance efficiency in governmental handling and decreasing costs for applicants.
According to reliable sources there is still uncertainty in the reforms being implemented in the system before Spring, 2019 which is when next H-1B registrations are due. On the timing of the release of the proposal, Attorney Shah said, “The proposed regulation creates additional uncertainty for American employers. The regulation is published on the eve of H-1B cap season when employers commence preparation of cases to file on April 1st. Employers are uncertain with the timing whether they should begin preparations under the current system or the proposed new system.”
Commenting on the legal aspects and fine lines of demarcation among executive, legislature and judiciary, Shah doubted the very basis of the proposal saying, “Also in question is whether USCIS has the authority to make the proposed changes under the law.”
It may be reiterated at the end that any interested member of the public can weigh in on the proposed rule until January 2, 2019.