H-1B Visa: Ban on lottery system proposed by Trump government; Here’s what it means

Updated: Oct 30, 2020 1:36 PM

In the face of the pandemic many in the working community have lost their jobs fallen out of legal status as they could not renew their H-1B’s and have had to return to countries that they seemingly “belong”.

It’s imperative to remember that some of the highest revenue earners and taxpayers in the U.S started out on the H-1B visas soon after college at wages far from what they went on to earn. (Representational image)

By Nandika Handa

The path for professionals and those in the H-1B community towards establishing themselves in the U.S seems to be getting narrower with the onslaught of immigration reforms and changes in wage regulations as proposed by the Trump government.

In the face of the pandemic many in the working community have lost their jobs fallen out of legal status as they could not renew their H-1B’s and have had to return to countries that they seemingly “belong”.

Earlier this month, the U.S Homeland Security and Department of Labour issued wage increase rules that would push wages needed for the of the H-1B way up. This could lead to an alteration in the eligibility criteria and diminish the chances of many who are graduating from being sponsored for an H-1B in particular. Not only recent graduates but many in the tech industry might be affected as the sudden hike in wages might be unlikely. (This ruling was challenged in court by a group of technology firms in Mid-October.)

The most recent “impending cloud” has come with the proposal of the Trump Government to scrap the H-1B lottery system.

In the prevailing system, the H-1B category is capped at around 85,000 applicants. The applications often exceed the cap and so the selection process is moved to a “Lottery System”. This lottery is drawn from a larger pool of accepted applicants (based on qualifications, education, experience and suitability to the job) and accepts 85,000 random selections are drawn through a computer-generated allotment.

The current administration seeks to change this by scrapping the lottery system and replacing it with wage-based selections. As per the proposed ruling, when initial H-1B visa applications, subject to the annual 85,000 maximum exceed that cap visas would be granted first to applicants in the uppermost of four wage categories, then to those in the third level going down to the lowest level until all the visas have been granted.

Also, as per the proposed rule-In case, the number of applicants is lower than the 85,000 cap in the initial 14-day period cap applications will continue to be accepted till cap is reached. Historically, the cap has always been exceeded since 2014.

The Department Of Homeland Security will open a public comment period once the ruling is published in the Federal Register. Interested parties will have 30 days to submit comments relevant to the proposed rule and 60 days to submit comments relevant to the proposed information collection. The Department will review all properly submitted comments, consider them carefully, and draft responses before issuing a final rule.

With this proposed rule, the Trump administration has cited that it is continuing to carry on with its promise to protect the American workers and building the economy.

It has also been cited by acting DHS Deputy Secretary Ken Cuccinelli that the H-1B program is often misused by the U.S. employers, and sometimes their U.S. clients, who might be seeking to hire foreign workers and pay lower wages. He further stated that use of random selection to allocate H-1B visas makes it tougher for firms to plan their hiring, fails to leverage the H-1B program to truly compete for the world’s best and brightest, and hurts American workers by bringing in the relatively lower-paid foreign workforce at the cost of the American workers.

Even though the H-1B visa is by no means extremely easy to obtain there has been a general sense of objectivity and healthy competition that has arisen out the current system. Needless to say, it has afforded a talent pool to the U.S. that has been unsurpassed by many countries. If it wasn’t for this system how the U.S would have had access to the brightest and the best talent in the world in the field of technology, medicine business and many others.

It’s imperative to remember that some of the highest revenue earners and taxpayers in the U.S started out on the H-1B visas soon after college at wages far from what they went on to earn.

They didn’t all start out as amongst the highest paid in their fields but were very merit worthy in their work? A lot of them went on to become the most brilliant minds and business magnates that the world knows today. Despite initial strife, the system was one which supported them not ousted them out just because they might have been unable to secure high paying jobs initially. Thus, competition is healthy but not skewered under the current allotment system.

In the current scenario a lot of people are left asking larger questions such as – Can the U.S immigration policy ignore the contribution of such immigrants? Will the U.S. be able to replace the talent pool at the fast and furious pace as it seeks to introduce such reforms?

The outcome on the Indian IT professionals will be immense and this will certainly lead to many of them having to head back despite being the most hardworking and talented in their fields. A lot of them have children who are U.S. citizens and that is the only country they know. This move could result in eroding the fibre of such families.

Many have pleaded with their firms to take action in and have asked for the help of the Ministry of External Affairs. In a reaction to this latest move, the Ministry of External Affairs has stated that India and the U.S.A. have a very special relationship which is based on people to people relationship. They have engaged with the U.S. government to possibly increase predictability in the visa regime and to minimize the troubles being faced by those already there or those who need to travel to the U.S. for bonafide reasons.

The Government of India has said it will continue to monitor any developments on this issue.

(The author is an Independent Immigration Specialist. Views are personal.)

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