Trump suspends H-1B and sets it up for overhaul

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US President Donald Trump issued an executive order on Monday to extend the suspension of green cards till the end of the year and expand it to cover non-immigrant work visas such as H-1B, which, through a separate reform regulation at some future date, will also undergo a series of permanent overhauls to make it merit-based by prioritising highest paid applicants.

Senior Trump administration officials said the suspended work visas included H-1B, H-4 for some H-1B spouses, H-2B for low skill workers, some categories of J visas for cultural and education workers and L-1 for intra-company transfers. They were intended to ensure Americans had the first shot at jobs in the aftermath of record job losses caused by Covid-19 related lockdowns, and are expected to free up 5,25,000 jobs.

The suspension of H-1B non-immigrant visas for highly skilled foreign workers had been widely expected and, as reported earlier by Hindustan Times, will impact Indians disproportionately as the largest beneficiaries of the programme, accounting for more than 70 per cent of the 85,000 given out annually.

Vikram Desai, an IT professional cleared for green card, says he and his wife had looked at each other with dread when they first heard of the suspension order. “We have parents in the high-risk category of those vulnerable to Covid-19 and our first thoughts were that if one of us had to leave the US for India, we may not be able to return until the end of the year,” he said.

Hundreds of Indians on H-1B or those approved for green cards had already been living away from their family or spouse for months now, stranded in India because of travel restrictions in force on either side, compounded by the closure of consular operations at US missions.

“This is a Hindu Ban much like the Muslim Ban,” said one of them on condition of anonymity. The person was referring to the controversial ban imposed on the entry of people from some Muslim majority countries by Trump early on in his presidency, which remains in force, in a version diluted by legal challenges.

It’s more like an India ban, actually. The H-1B suspension will affect Indians as the main beneficiaries, as stated earlier, and it will be Indians once again who will be hit the hardest by the suspension of H-4s that allow spouses of H-1B visa holders cleared for green card to work. Indians are the largest beneficiaries of this visa because the queue for green cards is the longest for Indians, current waiting time is statistically estimated to be over 100 years. H-4 was introduced by President Barack Obama in 2015 as an incentive for these green card hopefuls. The Trump administration wants to rescind it.

Political observers linked the suspensions to Trump’s desire to seal the support of his base ahead of his re-election bid in November. Some conservatives have long viewed the work visa programmes, specially H-1B, as a threat for Americans, and Trump is tapping into it with these suspensions.

Activists campaigning for a better deal for India H-1B visa holders in line for green card say an estimated two million Indians will be impacted by the suspensions, including H-1B visa holders, those waiting for their green cards and those on L-1. They claimed these were conservative estimated.

Leon Fresco, a consultant for Immigration Voice, an advocacy group for green card hopefuls, wrote on Twitter legal that the suspension orders could be challenged in court.

Chinese are the second largest beneficiaries of these programmes but they are already on notice from the Trump administration for Covid-19.

Equally significant with lasting impact for Indian professionals wanting to work in the United States and Indian IT services companies will be the permanent changes that the US president is ordering, such as the way H-1B applicants are selected from among the hundreds of thousands that apply.

The electronic lottery system, which is used to pick the 85,000 successful applicants from the total number of applicants that was three times more last year at 2,25,000, will now be replaced by a merit-based system that will prioritise highest salary applicants to “get the best and the brightest”, a senior Trump administration official told reporters in a background briefing ahead the issuance of the order.

“So the top 85 (thousand) salary offers among the 2,25,000 or so applicants for those visas will get those visas,” the official added.

President Trump has been calling for reforms in the H-1B visa programme to attract the best and brightest, echoing immigration hardliners who have argued that the present system is being abused to bring foreign workers on low wages to displace Americans, instead of attracting the really talented as its original mandate.

The Trump administration will also seek to plug a “loophole” in the existing H-1B programme that allowed companies to hire foreign workers and then “domestically outsource” them to other companies, replacing their American workers. They do so by bypassing a rule prohibiting the hiring of a foreign worker if it directly led to the firing of an American worker. Outsourcing through a third-party system is critical to the business model of Indian IT services companies.

The officials did not name any Indian companies, but did mention two American companies that have gone on to become controversial face of this practice, Disney and AT&T. Most egregiously for the critics of this practice, Americans workers were forced to train the foreign workers who replaced them.

“The President has instructed us to end that practice and will do so by regulation as soon as we possibly can,” said one of the officials who briefed reporters.

The H-1B reforms will also include a change in the way the department of labour calculated prevailing wages so that foreign workers are in the upper end of the salary scale and don’t end up undercutting American workers. The labour department will also be empowered to investigate H-1B abuse.

“Without regulatory language on changing the H-1B lottery to a system based on highest salary it is not possible to know whether such a regulation would be lawful and not struck down by a court,” said Stuart Andersen, whose non-partisan think tank National Foundation for American Policy closely tracks immigration issues, of the proposed changes in the H-1B selection system.

The text or the timing of the regulation is not known.

About the suspension of H-1B and other work visa, Andersen said, “it will encourage companies to conduct more work outside the United States and are much more likely to harm the US economic recovery than to aid it”.