Trump's H-1B endgame looks to redefine visa in January 2019

Even if this latest effort passes legislative muster next year, it may be a case of using a sledgehammer where a scalpel would have sufficed.
Written by Rajiv Rao, Contributing Writer

For the past two years, United States President Donald Trump has fought a relentless war against what he thinks is the unfair use of the H-1B visa by mostly Indian professionals, who he says are taking away tech jobs from US citizens.

Now, Trump is seeking to put the nail in the coffin for the H-1B visa category by redefining it in such a way that successfully applying for one will be almost impossible.

The US government's current definition of the visa category is a job that "requires [a] theoretical and practical application of a body of specialised knowledge along with at least a bachelor's degree or its equivalent.

"For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations."

In October, as part of the Unified Fall Agenda 2018, the Department of Homeland Security declared that this "specialty occupation" prerequisite for the visa will be re-tooled. It will do so, it declared, by revising "the definition of employment and employer-employee relationship to better protect US workers and wages". The entire initiative would be dubbed under the rubric Strengthening the H-1B Nonimmigrant Visa Classification Program.

Trump has been insistent on bringing the "best and brightest" workers to the country, and critics point out that this was not the explicit purpose of the H-1B visa to begin with -- the O-1 visa already fulfils that mandate by catering to individuals with "extraordinary abilities".

With these proposed changes, observers says the administration will utilise them to eliminate the entry-level wage.

"If the Level 1 or entry-level wage is eliminated, employers are not likely to hire an entry-level worker at the next wage level, which in almost all H-1B occupations is significantly greater when you look at the DOL wage ranges," said Dagmar Butte, a partner in immigration firm Parker, Butte, and Lane, in Forbes.

"Therefore, a foreign student would not be able to obtain entry-level work in the US upon graduation. This would be true even for many advanced degree graduates," said Butte.

This is problematic as many of these visas have, historically, been used by students with degrees in specialised fields such as bio-medical engineering or robotics. People with these specialised skills are highly sought after in the US, and companies have had major problems filling those positions.

There is also another major problem regarding the redefining of the employer-employee relationship. While redefining the employer-employee relationship was designed to prevent outsourcing companies and body shops from utilising exploitative tactics, there are plenty of other categories of workers that involve third-party sites that will also be affected. Doctors, for instance, are an example of professionals who will almost certainly be affected by the proposed rule change.

The largest group negatively affected by these visa changes will be Indian citizens. According to United States Citizenship and Immigration Services (USCIS) data, almost three out of every four H-1B visa holders fall under this group. Out of 419,637 foreign nationals that work in the US on H-1B visas as of October 5, 2018, 309,986 of them are Indians.

Being wary of outsourcing firms who game the system and swamp entry-level US tech positions would not be such a controversial position, since these jobs are necessary stepping stones towards scaling the next tier of jobs in the industry.

As The New York Times has reported, many deserving candidates in a wide range of professions have been hindered from obtaining H-1B visas because of being shut out by the avalanche of outsourcing-related applications from India. On the other hand, US tech CEOs claim that an acute lack of highly skilled professions in the areas of emerging tech are hard to find, and these rules will only worsen that skill-drought, and propel the country towards economic suicide.

Timing, of course, is everything. The fact is that the nature of outsourcing has changed dramatically over the past few years, with the onslaught of digital requiring far less dependence on traditional duties such as infrastructure maintenance. Instead, it requires higher-value functions like strategic design consulting, and employees to focus on customer facing and being highly responsive.

Thus, Indian firms have dramatically reduced their H-1B visa filings recently and upped their rate of American hires.

Is this a case of too much? Jennifer Minear, an immigration lawyer at McCandlish Holton in the Forbes piece puts it most succinctly: "Whatever they do, we can be sure that it will be an overbroad effort that will do with a sledgehammer what should be done with a scalpel -- and it will be aimed at gutting America's most commonly used business visa category."

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