H1B and H4 visa feature in Donald Trump admin's Fall 2018 regulatory agenda as US midterm elections loom: All you need to know

New York: Reports swirling today of the Donald Trump administration planning to “revise the definition of speciality occupations under H1B visas” is better understood as a notice of intent to put an official stamp on what has already become par for the course in the H1B ecosystem in the United States . Most of the bigger US companies are readying for Plan B for months now, testing multiple other locations for nearshoring projects as the noose tightens around techie labour supply. The H1B figures twice in the list of 89 items in the Department of Homeland Security’s (DHS) bucket list for for Fall 2018 and is in the ‘proposed rule making’ stage which means it has been pencilled as an action item for the coming months either during or after the midterm elections which decide political control over US Congress. With barely a fortnight to go before the elections, the DHS Fall agenda coincides with the White House effort to bring immigration issues back into the political frontlines. [caption id=“attachment_4443109” align=“alignleft” width=“380”]  Kristjen Nielsen, Secretary, US Department of Homeland Security. Reuters[/caption] The Unified Fall Agenda, as it is called, is the Fall edition of a regulatory agenda published twice a year where government agencies describe regulatory actions they are developing or have recently completed. The proposal to nix work permits for spouses of H1B workers (on H4 visas), for instance, was published in the Spring agenda this year. It features in the Fall agenda too. It was in the proposed rule making stage both then and now. From the time the H1B visa came into force in the early 90s, the defintion problem has existed. The intersect of the emergent nature of business needs and available talent pool does not always lend itself to the strictest definition of “speciality occupation”. Raj, from Florida, is a data warehousing specialist who came to the US on an H1B. He has a Master’s degree but has chosen not to rise up in the corporate heirarchy and prefers to work the same job for better money every year. “I’m a specialist because I’ve done this for the last 10 years and I know very few people who can do this as well as me for my organisation but whether I’m a specialist or not is open to interpretation”, he says. Today, Raj is not at risk but an H1B worker in his role may be. We have spoken to several such people who have been getting the dreaded request for evidence (RFE) letters in the mail for either being non-speciality workers or “over-qualified”. The Department of Homeland Security is working to remove ambiguity in the definition of speciality occupation. “The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders”, is the summary offered in the official note listed online. This is not the only agenda item where the H1B figures. There’s another one where the DHS plans to publish a proposal establishing an H1B cap pre-registration system, which would permit the filing of only pre-selected H-1B petitions. It’s entirely possible this could kick in for the 2019 H1B season if the files move swiftly. Here’s the officialese: “This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018.” In reality, though, the H1B has already undergone a complete overhaul in the last two years. What the listing on the Fall agenda means is that the screw tightening that’s already been done in a variety of areas will get an official stamp and be covered in one omnibus document for future H1B intake seasons. With almost zero movement in the US Congress on legislation, all of the changes to the H1B visa have been done by the US Immigration and Naturalisation Services (USCIS) in bits and pieces. The Trump administration’s pushback against the H1B began even before Donald Trump took office and the first year. A freeze on premium processing (higher payment, faster track visa extensions), higher rate of counter questions on applications ( called request for evidence of RFE) and a remarkable background briefing at the White House that skewered many of India’s mighty outsourcing companies by name marked the beginning of the 360 degree change in the H1B visa. The years 2017 and 2018 have taken the game to an altogether new level. “It’s gotten really hard. In fact, it’s so bad now that I’m not going to bother too much about my extension. My company has filed, the project needs me, they don’t have a local replacement for my role which is mission critical but I’m not betting on an extension. My bags are packed. I’m ready to leave”, said a data storage specialist Firstpost spoke to in New York whose H1B times out in January 2019.