​Trump's executive order against H-1Bs is a damp squib that calls for 'review' rather than changes

Plus, any material changes to the program such as wage rates or lottery amounts will have to be approved by Congress -- and historically they haven't been inclined to do so.
Written by Rajiv Rao, Contributing Writer

If you'd have bet on anyone to successfully recalibrate the H-1B visa enough to hobble outsourcing companies from sending low-cost tech workers to the US, it would be Donald Trump.

After all, he spoke repeatedly and tirelessly on this issue while on the campaign trail last year, and after being elected president he has spent countless hours deliberating it in both public and private sessions. He has even engaged with leading tech chieftains such as Elon Musk and Satya Nadella and solicited their views on the matter.

Ultimately, though, Trump has indicated a steely resolve to ensure, as expeditiously as possible, that Indian outsourcing companies such as Infosys, TCS, and their brethren can no longer game the visa lottery and bring in workers from India to work on US client projects at a wage that, at roughly $70,000, is considered sub-par and exploitative.

So when Trump voyaged to Snap-on, a tool maker in Kenosha, Wisconsin, where he was going to sign the executive order, the tech world held its breath to see in what manner the boom would be lowered on them. "We are moving forward with a muscular new policy that we're announcing tomorrow," said one administrative official who preferred to be anonymous, a day before the order was to be signed. It was safe to expect the worst.

When the day came, Trump went through the paces at Snap-on with great fanfare: "We are sending a powerful signal to the word; we are going to defend our workers, protect our jobs and finally put America first," Trump said on the factory floor. It turns out, though, that the order is mysteriously neither muscular nor is it sending any kind of signal, powerful or otherwise, which is certainly surprising considering how much time, thought, and effort has gone into the H-1B in the last year.

What the order does do -- here, we will not be dealing with the "Buy American" component, only the "Hire American" one -- is to make no changes to visa programs either now or in the immediate future.

Instead, it instructs the Departments of Labor, Justice, Homeland Security, and State to pore over existing laws and procedures and then to recommend changes with no specific timeline stipulated. In the case of H-1Bs specifically, it simply asks to ensure that the visas are awarded to the most skilled, best-paid immigrant workers.

The order also directs the above-mentioned departments to take "prompt action" in cracking down on fraud and abuse in guest worker programs, like H-1B visas -- but this was already accomplished in a directive to the USCIS, so there's nothing new in this clause.

Already observers are either puzzled or underwhelmed by what they see as a "wishlist", a non-event that, according to Fortune magazine, "calls for a series of relatively modest steps, most of which could take months or even years to carry out."

Furthermore, any substantive alterations, such as changing the wage rates or giving priority to certain workers over others in the lottery would have to go through Congress, which could take even more time considering Congress has historically been reluctant to do so.

"This does nothing," said Senator Charles Schumer of New York, the Democratic leader, in the New York Times. "Like all the other executive orders, it's just words -- he's calling for new studies. It's not going to fix the problem. It's not going to create a single job."

California Congresswoman Zoe Lofgren -- who recently 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 -- is someone who thinks that the issue of the misuse of the H-1B is a serious one that needs fixing.

However she dismissed the president's order as "poorly targeted" and "unlikely to achieve its desired result". "Half of the startups in Silicon Valley were created by highly skilled people from other countries," she said. "I don't think the president and his staff fully appreciate that fact."

Ultimately, as The Verge points out, the Trump presidency needs to figure out what kind of H-1B visa it eventually wants to fashion. There has been a lot of confusion between an H-1B given to your average systems analyst with a few years of experience who is brought to the US to work at a client site by an Indian outsourcer, and one given to a sought-after PhD in artificial intelligence recruited by a specialized AI firm in the Valley. Trump, to his credit, has always indicated that he is in favour of the latter, saying that the US needs to keep these students from going back home.

However, there seems to be one influential dissenter to his view. His chief strategist Steve Bannon, in an interview given to the Washington Post last year along with Trump, expressed his dismay that people from South Asia and East Asia are coming to the US to get engineering degrees and then either taking up jobs or starting tech companies. Trump responded: "We have to be careful of that, Steve. You know, we have to keep our talented people in this country."

Bannon didn't seem convinced. "When two-thirds or three-quarters of the CEOs in Silicon Valley are from South Asia or from Asia, I think ..." He didn't finish his sentence. "A country is more than an economy. We're a civic society," he added, suggesting that at the end of the day, ethnic and racial roots matter more than anything else and a foreigner is a foreigner is a foreigner. Period.

This is really where the battle lines for the H-1B will be drawn if people like Bannon have their way.

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