Update: After this post was published, the McClatchy DC news service reported that the U.S. Citizenship and Immigration Services (USCIS) has stated that it is not considering a regulatory change to the H-1B extension rules as had previously been reported. USCIS did, however, indicate that the agency is considering a number of policy and regulatory changes to carry out the President’s “Buy American, Hire American” executive order, including conducting a “thorough review” of employment-based visa programs.
The Department of Homeland Security is considering new regulations as a result of the Trump Administration’s “Buy American, Hire American” initiative that was promised during Trump’s “America First” campaign. The new regulations could potentially prevent hundreds of thousands of employees from keeping their H-1B visas during pending green card application processes.
The angle of the administration is to reinterpret the language of the American Competitiveness in the 21st Century Act, specifically the portion that states, “may grant.” The Administration is hoping that reinterpreting this language will mean that the H-1B visas will not be extended beyond the allowed two three-year terms, even with a pending green card application.
Legal experts say that the idea behind the move is to create a “self-deportation” for these employees, most of whom are Indian tech workers. The administration’s theory is that this self-deportation will then lead to the availability of these jobs to American workers. The administration has also announced that it plans to end work eligibility granted to the spouses of H-1B recipients. It is also considering changes to the H-1B process that will grant a higher priority to more skilled and highly educated employees.
The move is not surprising, as Trump signed an executive order last year calling for a review of the H-1B visa program, suggesting changes to allow only the most skilled and highest-paid applicants to receive the visa. Trump stated in April of last year when announcing the order, “This historic action declares that the policy of our government is to aggressively promote and use American-made goods and to ensure that American labor is hired to do the job. It’s America first, you better believe it.”
About H-1B Visas
The H-1B visa is usually issued for three to six years to employers, allowing them to hire a foreign worker. Those who hold an H-1B visa and have begun the application for a green card are often currently allowed to renew their work visas indefinitely, essentially until they obtain a green card. It is estimated that more than 1 million individuals hold H-1B visas and are waiting on a green card. Sometimes, this can take longer than a decade, and during the process, applicants purchase homes and start families. They often have children who are American citizens before they, as immigrants, are awarded green cards.
More than half of all H-1B visas have been awarded to those of Indian descent, according to the Pew Research Center, and many of them work in the tech industry. Facebook, Bank of America, Caterpillar and other tech giants and large corporations have complained that the current 85,000 annual cap on H-1B Visas is too low. Their claim is that they are not able to find enough skilled workers without the program. Companies who typically use the program have often been awarded state grants under agreements to create jobs.
Those in favor of further restricting the visa say that the visa program is becoming more and more abused, causing American workers to be laid off while employing immigrants under the H-1B program. Some argue that the president’s move isn’t enough, and that the program should be eliminated entirely.
In the background of this move, a group of bipartisan lawmakers are also moving to make the H-1B process more stringent. In the meantime, however, many legal experts expect the move made by the Trump administration to be met with legal challenges.
Many expected the need for Congress to approve such a change, and many attorneys expect lawsuits to be filed if the changes are ultimately made without Congressional approval. Leon Fresco, who, under the Obama administration served as a deputy assistant attorney general for the Justice Department, now represents H-1B workers. “This would be a major catastrophic development as many people have been waiting in line for green cards for over a decade, have U.S. citizen children, own a home,” Fresco has stated.
While the H-1B visa doesn’t receive the same publicity as some other hot-button immigration topics such as the border wall, it is very significant, as it affects millions of workers inside the tech industry alone. Those holding H-1B visas work in a variety of fields, and because of the previous sense of security surrounding the visa and its path to holding a green card, the controversial move is expected to affect several industries and countless families.