US to soon undertake review of non-immigrant visas including H-1Bs

BANGALORE/MUMBAI: US President Donald Trump, in the executive order signed by him on Wednesday, has sought a review of the non-immigrant programs, which include work visas, including the popular H-1Bs.

While, the executive order, at present, temporarily bans some immigration – notably, those who were waiting for a green card outside the US, with some exceptions carved out – a review of the non-immigrant visa programmes within 30 days of the proclamation is going to put H-1B and L visas (used for intra-company transfers) under another round of stress test.

President Trump wants the secretaries of labour and homeland security to review other non-immigrant visa programmes and recommend ‘other measures’ appropriate to stimulate the US economy and ensure prioritisation, hiring and employment of US workers.

Ashwin Sharma, Jacksonville-based immigration attorney, told TOI, “At present the proclamation had left untouched the vulnerable visas in the non-immigrant categories. However, section 6 of the proclamation is deeply concerning as it leaves the door open to a future attack on the H-1B and other work visas.”

Sharma hopes that the President has no further plans to attack the H-1B and other non-immigrant visas under the guise of ‘protecting the American worker’. He wondered whether the proclamation is a subtle and first test of the waters. According to him, US will need its skills gap filled by H-1B and other professional workers in the long recovery from the ravages of Covid-19.

Nasscom, the $191 billion IT industry body has pointed out to the US government that the knowledge sector and not just health care workers are essential and critical to helping the American people and the US economy recover during these difficult times.

“The US needs access to those working in the health sector as well as those essential technology workers who are keeping the critical infrastructure operating in the US which is very important in the recovery phase and we believe that the department of homeland security (DHS) has provided an excellent roadmap for any subsequent potential recommendation for Non-immigrant and other visa categories. The Cybersecurity & Infrastructure Security Agency (CISA) at the department of homeland security gave detailed examples of jobs and employees that are essential,” said Shivendra Singh, vice president & head – global trade development at Nasscom.

In introducing the guidance, CISA had stated that functioning critical infrastructure is imperative during the response to the Covid-19 emergency for both public health and safety as well as community well-being. “Certain critical infrastructure industries have a special responsibility in these times to continue operations,” it said.

It remains to be seen what recommendations will follow post a review by the secretaries of labour and homeland security. “However, a ban on non-immigrant visa is highly unlikely. In any case, any bans or restrictions will be effective only during the period of the national emergency. Even a president cannot override laws already written by Congress,” said Rajiv S Khanna, Arlington based immigration attorney.

Even as there’s growing clamour to clamp down H-1B visas, a reality check showed that the top seven India-based companies are said to have received only 2,200 new H-1B petitions for initial employment in FY2018, less than 2.6% of the 85,000-annual limit for companies. The US is estimated to have a shortage of 7.5 million STEM talent as of April last year. Many in the US tech industry feel immigration is the only way to deal with it.

Nasscom said the priorities established by the CISA should help define the types of essential workers that any subsequent recommendations on non-immigrant visa programmes should include and address. “We also hope that those developing recommendations regarding these programmes consult broadly and accept input from a wide variety of sources in their deliberations.

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