How the H1B visa is getting skewered

The latest smackdown in a relentless series of tightening measures the last 70 days is hitting H1B workers where it hurts most - computer programmers will not be eligible for H1B visas by default. “By default” is the operative word here and runs in parallel with every hole that’s getting plugged in the way H1B works in Trump’s America.

Nikhila Natarajan April 04, 2017 17:40:47 IST
How the H1B visa is getting skewered

The H1B visa is a gift that keeps on giving for Trump the politician who may be chewing on the delicious prospect of a 2020 run.

The latest smackdown in a relentless series of tightening measures the last 70 days is hitting H1B workers where it hurts most - computer programmers will not be eligible for H1B visas by default. “By default” is the operative word here and runs in parallel with every hole that’s getting plugged in the way H1B works in Trump’s America.

How the H1B visa is getting skewered

H1B baiters are avoiding Congress gridlock and winning big already/ Reuters

As things stand, the U.S. Department of Homeland Security issued a stern warning Monday afternoon to prevent the fraudulent use of H1B visas -sending shivers through the tech community but still falling short of President Donald Trump's campaign promises to overhaul the programme.

Full text of the USCIS mailer Monday:

"U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.

Beginning today, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:

Cases where USCIS cannot validate the employer’s basic business information through commercially available data;

H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and

Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.

Existing H-1B Fraud Measures

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. USCIS refers many cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation.

Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division or by completing ICE’s HSI Tip Form.

Further information

For more information about the new H-1B visa fraud and abuse detection initiative, visit the Combating Fraud and Abuse in the H-1B Visa Program web page.

For information about H-1B petition requirements, visit the USCIS H-1B webpage."

The lottery system stays for now and the edition for fiscal year 2018 opened Monday without changes.

Understandably, there is a camp that sees this status quo as Trump’s failure to overhaul of the system but equally there are Trump campers who are celebrating the H1B crackdown as a triumph for the America First war cry, almost the only campaign promise that is barrelling across America with zero legal pushback so far because it’s gone through the quiet and eerie back alleys of stolid bureaucracy.

It’s important to note here that there are three arms of government that have led the all-out assault against H1B fraud - the Justice department, the USCIS and Homeland Security working in tandem at a searing pace over the last two months.

Just for context, Border Patrol is part of Customs and Border Protection, which in turn is a division of the Department of Homeland Security.

For all that’s going awfully wrong with Trump-led policy changes that are getting hammered in the US Congress, the torrent of anti-H1B visa changes is a triumph for the white man who voted Trump, it’s a big hit for a ‘stuck-in-the-campaign’ President who is getting very little done on his more publicised peeves of Obamacare and tax reform.

Either Trump has consciously not dwelt on temporary worker visa reform because he knows the screws can be tightened better from the backroom or the soul of America’s Border Control was primed for a Trump kind of president. Both may be true in some measure and the onslaught on the H1B is a ticket Trump and Co can ride well into 2020.

Fall of 2016 may be a sepia toned time from long ago story for the ephemeral social media sand timer but is barely a few hundred days ago. Those who trailed behing Trump on the campaign know that the loudest cheers for him came from the chaps on horseback on the USA Mexico border who endorsed him and sang “Build the Wall” on his rallies, chewing on steak, almost unable to wait for a black man and woman to turn their backs on 1600 Pennsylvania Ave in Washington D.C.

Under Trump, the working relationships between anti-immigrant flagbeares and and Border Patrol are stronger and more intricately connected than ever before. Small detail but Trump has rallied strongly and praised in public kingpins of the anti immigrant movement who are now directing law enforcement policy, according to reports and quotes published in the Washington Post.

Read the full policy memo here:

Seen from the view of the Trump voter, the three most important paragraphs in the latest memo cut to the heart of the angst that displaced American workers feel and who are now able to rail against louder than ever before since their man is in the White House. When H1B victims speak, their grouse is that tech workers are gaming the system and the American government has looked the other way which has allowed the 1990 law to be diluted by the way it’s being used by low level workers ( including but not limited to techies) masquerading as “highly skilled”.

“…While the memorandum stated that most programmers had a bachelor’s degree or higher based on information provided by the Handbook, that information is not particularly relevant to a specialty occupation adjudication if it does not also provide the specific specialties the degrees were in and/or what, if any, relevance those degrees had to the computer programmer occupation. Further, the memorandum failed to mention that only “some” of those that had a bachelor’s or higher degree at that time held a degree in “computer science . . . or information systems.

"Furthermore, the memorandum also did not accurately portray essential information from the Handbook that recognized that some computer programmers qualify for these jobs with only “2- year degrees.” While the memorandum did mention beneficiaries with “2-year” degrees, it incorrectly described them as “strictly involving the entering or review of code for an employer whose business is not computer related.” The Handbook did not support such a statement.
Rather, the 2000-01 edition did not make such a distinction and described all programmers as sharing a fundamental job duty, i.e., writing and testing computer code. According to the current version of the Handbook, this is still the case; and individuals with only an “associate’s degree” may still enter these occupations.5 As such, it is improper to conclude based on this information that USCIS would “generally consider the position of programmer to qualify as a specialty occupation.”

New York based immigration attorney Cyrus Mehta has a detailed blog post on the new normal for those filing under the FY 2018 H1B cap and multiple new safety checks.

“Yeah, I don’t lose. I don’t like to lose”, Trump said after his ambitious and hurried attempt to repeal Obamacare was set on fire in the Congress. It’s possible he wasn’t referring to Obamacare in particular at all. The stealth attack on the foreign worker visas is a bling he may choose to showcase in a 3 am tweetstorm. Coming soon.

Updated Date:

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