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H1B visa policy change would require Congressional action, say experts

LiveMint logoLiveMint 20-04-2017 Lalit K. Jha

Washington: Making any change in the H1B visa programme, popular with Indian technology professionals, would require legislative action by the US Congress, an immigration expert has said.

In an executive order signed on Tuesday, Trump had directed the departments of labour, state, homeland security and justice to review the current laws governing the programme to suggest changes to prioritise the most skilled and highest paid positions.

“However, any changes would require either Congressional action, changing statutory requirements, or regulations that would trigger President Trump’s prior executive order ordering agencies to rescind two regulations for every new regulation proposed,” said noted immigration expert Rebecca Bernhard, who is a partner at the international law firm Dorsey & Whitney.

Moreover, the current law and regulations of the H1B programme require that beneficiaries of H1B visas hold at least a specialised bachelors degree for the position offered and there are anti-fraud and training fees for employers to pay so that the government can maintain programs President Trump is calling for, she said.

Although President Trump’s call for additional measures to combat fraud in this new executive order could be implemented more quickly, she said documented instances of fraud in the H1B and other temporary visa programs are quite low.

“Most employers that utilise the H1B program do so legitimately because they need the skills and talent of a particular worker, and those who don’t can be rooted out by the current anti-fraud provisions,” Bernhard said.

Contrary to recent rhetoric, she said H1B visas do not generally act as a mechanism to replace American workers.

“Instead, US businesses use the H1B to gain access to the sought-after skills of foreign professionals, many of whom graduate from US universities, to complement the US workforce,” she added. “In recent years, universities report that foreign students make up over 60% of their STEM undergraduate and graduate degrees,” Bernhard said.

She pointed out that the unemployment rate for occupations that use H1B visas is very low as compared to the national unemployment rate.

“It is also a myth that US businesses seek H1B workers in order to save money; the fees and costs associated with filing a successful petition are high enough that most employers use the H1B because they cannot locate a qualified US worker to fill the position,” Bernhard said.

Marina Whitman, professor at Michigan University, said where there is a genuine shortage of Americans to do the work, hiring foreign workers on H1B visas add to overall efficiency in the US.

“But when they are used, as they sometimes are, to bring in foreign workers to replace American workers, who sometimes are forced to train their replacements who will receive lower wages, that is unfair,” she said. “Raising the wage floor at which H1B visas are permitted, as Trump has proposed, is probably a good idea, if such visas are for truly ‘highly-skilled’ people,” Whitman said.

Ann Lin, an associate professor at the Michigan University said, “One of the problems with the H1B visa is that it was understood to be for short-term immediate disruptions in the market where suddenly we need labour.” “We’re going to bring people in, but the job is going to be temporary and so they’ll be able to leave again. But we’re not using it like that,” Lin said. PTI

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