US tweaks H1B visa rules again, higher wage is key factor now

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ABOUT A fortnight before its term ends, US President Donald Trump’s administration has once again amended its H-1B visa regime to give priority to higher wages and skills instead of the prevailing lottery system for selection of candidates looking to work in the country.

The new rules will be effective 60 days after publication in the federal register Friday, making it likely that they will cover H-1B applicants for the new fiscal year starting April 1.

According to the amended rules released by the Department of Homeland Security (DHS), US Citizenship and Immigration Services (USCIS) will first select registrations where the “proffered wage equals or exceeds” the prevailing level in that area of employment.

“The proffered wage is the wage that the employer intends to pay the beneficiary. The wage level ranking will occur first for the regular cap selection and then for the advanced degree exemption,” the DHS said.

Every year, the US administration issues 85,000 H-1B work permits. Of these, 65,000 are for people with specialty occupations, while the rest are reserved for foreign workers who have earned a Master’s or a higher university degree in the US.

Until now, the selection of H-1B work visas was done by a randomised lottery system, which did not take into account factors such as wage, experience or any other requirements and demands. Since the number of applications from Indian companies as well as individuals is much higher than any other nationality, a lion’s share of these work visas is cornered by Indians.

Explained

Indian, US firms to be affected

It could impact US tech companies looking to hire from the pool of H-1B visa workers as they are skilled and available for lower salaries. Indian companies are also likely to be hit and may have to shell out more salary for on-site workers.

For example, as of April 1, 2020, the USCIS had received about 2.5 lakh H-1B work visa applications, according to official data — Indians had applied for 1.84 lakh or 67 per cent of these visas.

While taking charge as President, Trump had hinted that the work visa regime would be overhauled to ensure that the system was no longer used by companies that continued to pay lesser than the annual average salary paid to US workers, thereby undercutting jobs from them.

In November the same year, the US House Judiciary Committee had, in a bid to deter Indian and Chinese companies, voted to pass legislation to increase the minimum annual salary of H-1B visa holders to $90,000 from $60,000.

The latest rules mark the fourth policy change of the US administration over the last year. In April, the Trump administration had suspended approvals for immigrant and non-immigrant work visa, including H-1B, for 60 days. In June, the 60-day ban was extended till the end of 2020. On August 5, Trump, through an executive order, also barred federal agencies from hiring H-1B visa holders and other foreign workers in place of US citizens or green cardholders.

Less than a week later, the administration altered its position and allowed some of the H-1B work visa holders to return to the US for continued employment with the same employer. In October, the DHS published an interim final rule, a precursor to the final rules published on January 8.

On December 31, the Trump administration again changed its stance and extended the ban on immigrant and non-immigrant work visas till March 31. The Indian government responded that it was “engaged with the US government for increased predictability in the visa regime, and to minimize inconvenience to Indian nationals in the US or those proposing to travel to the US for bonafide reasons, including the movement of Indian professionals”.

“There is recognition in the US of that fact that Indian skilled professionals have contributed to the growth of the US economy, and helped the US economy retain its competitive edge, and innovation advantage,” the Ministry of External Affairs had said.

The constant changes in H-1B visa approval systems has been opposed by leaders of technology giants such as Google, Microsoft, Facebook and Twitter. Though Indian companies have gradually reduced their dependency on these work permits, many giant tech corporations still look to hire from the pool of H-1B workers.

H-1B visas are generally approved for three years, after which holders often change employers and continue working for other companies based in the US. In 2018-19, for example, Google, Facebook and Apple hired more than 13,000 highly skilled IT employees with H1B work visas, either directly or from existing H1B holders looking to change jobs in order to stay on, according to data from the US Department of Labour.





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