Uncertainty over grant of H-1B visas in 2020 expected to increase

President Donald Trump speaks after touring Snap-On Tools in Kenosha, Wisconsin, April 18, 2017, prior to signing the Buy American, Hire American Executive Order. (Getty Images)

U.S. Immigration attorneys expect uncertainty to increase in 2020 in grant of H-1B visas, the majority of which are obtained by workers from India, thanks to lack of clarity in the new registration process for work visas that is kicking off in April.

According to news reports, the Indian IT industry could also suffer due to the delays in 2020 when President Trump seeks a second term in November.

The H-1B ‘season’ has traditionally run from early March to the second week of April. From this year, it will run from early March, when the registration begins, to at least until the end of July 2020.

The U.S. Citizenship and Immigration Services (USCIS), the agency issuing H-1B visas, will move to the new system in April under which employers are required to register in advance names of employees who need the work permit. It will then select which of the registered candidates can apply for the visa.

“Essentially, this means that USCIS will take even longer to adjudicate (on) these cases and many companies and foreign nationals may miss the October 1 start date,” Neil A Weinrib, a U.S.-based immigration lawyer was quoted as saying in an Economic Times report Jan. 3

The report noted that Indian nationals are the biggest beneficiaries of the H-1B visas, issued by U.S. to get highly qualified professionals to work in the country. Since Trump became President on the back of anti-immigration rhetoric, the U.S. has consistently declined more visas to employees of Indian software exporters — who used the work permit to send professionals to the U.S. on client projects — and has instead favored U.S. technology companies such as Google, Facebook and Apple.

Under the Trump administration, Indian IT services companies saw rejection rates drastically increase in 2019. According to a National Foundation for American Policy (NFAP) analysis of U.S. Citizenship and Immigration Services (USCIS) data, as a result of more restrictive Trump administration policies, denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 24% through the third quarter of FY 2019 for new H-1B petitions for initial employment.

The ET report said quoting a New York-based corporate lawyer, the delays could be further amplified by the U.S. government’s record of tardy technology or workflow implementation which will impact both Indian and U.S. companies.

“There is more than a little apprehension that the process could be muddled up because of technological or workflow errors made by the government,” Rajiv S Khanna, Managing Attorney at Immigration.com told the paper.

In 2018, the top six Indian IT firms had received about 16% of the total visas issued. In 2019, there were only two Indian companies among the top ten visa recipients, which got 1,966 visas compared with 8,898 for the other eight firms.

This, according to the ET report, has forced Indian IT firms to be more cautious while filing their applications, resulting in an increased cost. They are also preparing to deal with increased scrutiny.

Under the current immigration environment in the U.S., things are going to get tougher. “The government has also earmarked more funds for immigration and labor law enforcement, which will result in more ‘raids’, site visits, audits and scrutinies,” the ET report said quoting Poorvi Chothani, managing partner of Law-Quest, a U.S. immigration firm headquartered in Mumbai.

“Hence, remaining compliant with the law and maintaining proper paperwork to show compliance is of paramount importance,” she said. Analysts also expect that there could be changes to how ‘specialty occupation’ is defined in the context of the H-1B visa, which may lead to increased scrutiny of applications.

An NFAP report said last year that given the time and expense involved with filing H-1B petitions, employers generally only file cases for individuals they believe qualify for H-1B status, which is why high denial rates should not be expected.

A key goal of the Trump administration – achieved through memos and policy changes – has been to make it more difficult for well-educated foreign nationals to work in America in science and engineering fields. “It is expected additional measures will be forthcoming to increase the level of difficulty for employers and high-skilled foreign nationals, “ the October 2019 report said.

It also quoted research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, that “Restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they also could be making the U.S.’s innovative capacity fall behind.”

It said quoting Glennon that in response to being unable to hire high-skilled foreign nationals, U.S. companies increase their hiring overseas, which causes more innovation by foreign nationals to take place in other countries, benefiting those nations.

In sum, the NFAP report said, H-1B visa restrictions, such as the type now being implemented by the administration, push jobs outside the U.S. and leads to less innovation in America.

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