​Three bills and a Trump executive order train their gun sights on the H-1B visa

Considerable change in the H-1B visa has been outlined in this legislation but the final outcome will ultimately depend on how President Trump decides to do business with India.
Written by Rajiv Rao, Contributing Writer

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While America's political future is steeped in uncertainty, there is no questioning what the US political establishment wants to do with the controversial H-1B visa for highly-skilled workers.

Three legislative bills and a soon-to-be-expected executive order may look like overkill but growing momentum against the H-1B gives the impression, at first glance, that the visa program in its present form is living on borrowed time. Especially noticeable about these efforts is the fact that they transcend party lines.

Republican Congressman Darrell Issa from California kicked things off earlier this year in the first week of January by introducing the Protect and Grow American Jobs Act (HR 170) bill, which aimed to constrict but not entirely eliminate an 18-year-old loophole in legislation that allowed US workers to be displaced by a visa-holding employee who has a master's degree or is paid at least $60,000. Issa's bill bumps the salary threshold to $100,000 a year but eliminates the master's degree exemption altogether, thereby somewhat disappointing those who were looking for more rigorous protection mechanisms for American tech workers.

A few weeks later, Republican Chuck Grassley (Iowa) and Democrat Richard Durbin (Illinois) re-introduced a bill from previous years, called the H-1B and L-1 Visa Reform Act, that they say will bump up enforcement mechanisms and modify wage requirements in service of both American workers and visa holders.

Specifically, the bill would prevent companies with more than 50 employees, of which at least half are H-1B or L1 holders, from hiring additional H-1B employees. The bill if passed would also empower the Department of Labour to actively patrol the visa landscape by being able to investigate and audit firms from a compliance standpoint and probe for abuse or fraud.

Their bill would also bring to end the system of computerized lottery with which the H-1B visas are allocated, giving way to a "preference system" where foreign students enrolled in colleges and universities in the US get priority. So would advanced degree holders, those who managed to secure a high-paying job, and those with prized skills.

Then, a few days ago, California Congressman Zoe Lofgren -- known to be the 'Silicon Valley' politician -- introduced the High-Skilled Integrity and Fairness Act of 2017 in the US House of Representatives, which prioritises allocation of H-1B visas based on a market-based system of allocation. This is designed to eliminate abuse of the system by preferencing those willing to pay 200 percent of the prevailing wage but above the minimum wage rate of $130,000 (more than double the $60,000 minimum rate established in 1989).

Playing to Silicon Valley galleries, Lofgren's bill would also seek to put aside 20 percent of H-1B visas each year for startups, defined as firms with fewer than 50 employees.

All of these efforts come on the heels of several high-profile events where American IT workers were fired and then replaced by Indians. In one egregious case, which I wrote about here, Disney fired some 400 of their workers who were then replaced by their Indian counterparts from TCS and Infosys. The fired workers were also then made to train their replacements or lose their severance. Similar events have taken place around the country in the past few years to make this a burning issue, and President Trump, while on the campaign trail, vowed to correct what he said was a gross injustice against American tech workers.


So, not to be outdone, President Trump is reportedly also looking to issue an executive order, due in 90 days and currently going through some final tinkering, which covers much of the same ground that the bills do. CNNMoney managed to get hold of a draft that gives an inkling of what to expect.

While the wording on the draft doesn't reveal too many details about possible changes in the H-1B, it does apparently propose numerous changes to many of the other visas that are important to the tech community such as J1 (summer work travel), the Optional Practical Training (OPT, which allows international students to stay in the US after graduating), and the E2 program (an investor visa).

Also going under the presidential knife is the L1 visa, which allows a foreign worker to transfer from an office abroad to the same company's US branch. Now, an applicant will be subjected to site visits within six months by Homeland Security. Within two years, there will be mandatory on-site checking for all employment-related visa programs.

Yet, despite all this action with the H-1B, observers are not convinced that Trump will allow the visa program to be severely mauled to favour American tech workers. Indian IT companies generate some $65 billion worth of business in the US and cutting off that spigot will mean the likes of GE, Boeing, and Cisco suddenly being unable to sell their turbines, planes, and routers in one of the world's fastest-growing economies.

It is going to be a fascinating balancing act that walks the tightrope between bombast and action while keeping the registers clinking on both sides of the globe.

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