Swaraj, Jaitley raise H1B visa issue but US Labor Dept is tightening regulations anyway

The most strictly regulated work visa in the United States - the H1B - is all set to become more knotty.

While high ranking Indian ministers continue to engage with various stakeholders in the Trump administration on the impending H1B visa reform process, the Department of Labour is further tightening H1B regulations in its relentless ongoing effort of upping protection for American workers.

Link: Follow our comprehensive coverage of H1B visas on Planet Trump

The form with the maximum open source information on H1B workers - the Labor Condition Application (LCA) is set to drill down to more painstaking detail than it ever has in all the years since the existence of the H1B visa.

Swaraj, Jaitley raise H1B visa issue but US Labor Dept is tightening regulations anyway

External Affairs minister Sushma Swaraj/ AP

In its present form, the LCA asks the employer for location of the H1B worker but the new LCA proposes to dig much deeper. This is born of the gaps that have historically existed within the H1B model - where the H1B employer often ( not always, not essential) sub-contracts downstream which means there are often layers of people involved between the official employer - H1B worker and and the client who don’t figure in the paperwork.

These gaps, because they go undocumented, have led to their own set of issues ranging from deep cuts in actual salary drawn to sketchy deliverables when an H1B staffer is benched.

If the proposed changes come through, the H1B employer will have to add the name of the “secondary employer” in cases where the secondary employer has the “right to control” the daily work of the H1B employee and this secondary employer’s ability to terminate the H1B employee.

Why this matters is that the LCA is the original fount of information on any H1B worker and is the first stop in the voluminous trail of paperwork that accompanies H1B petitions. It is basis the open source information in LCA petitions that a young French engineer named Theo Negri first broke the story on how some companies game the H1B lottery systems.

India's foreign minister Sushma Swaraj flagged the H1B visa issue with a visiting nine member Congressional delegation and Finance Minister Arun Jaitley brought it up with Commerce Secretary Wilbur Ross stressing that H-1B workers are “high-value professionals” and not “illegal economic migrants and that is why US should treat them with a different and better perspective.”

While this outreach continues, the focus of the Americans has been on something else entirely: plugging the gaping holes in procedure and due diligence. Like White House officials (rightly) say that nothing has changed so far, that is as far as legislation goes. But since the H1B visa is overseen by multiple agencies, the assault on tying up loose ends has been relentless.

After being a staple of the whisper circuit the last decade, ‘gaming the H1B’ became prime time fodder for the ‘America First’ club in Trump-led USA. Early this year, the White House jumped in too, naming TCS, Infosys and Cognizant in its briefing on reforming the H1B.

Despite India’s A team of ministers routinely bringing up the H1B issue, it did not come up during the Modi-Trump meetings. The American position has not changed since early this year, and a top White House official put it in simple words: “The official position has not changed. It is under review and until the review is complete, we have nothing more to say. Whatever needs to be said is in the Buy American Hire American Executive Order."

India leads the list of top 20 countries filing H1B applications, according to latest data released by the US Citizenship and Immigration Services - the most important cog in H1B regulation. Of the total 336,107 applications received in 2017 , India filed 247,927 H1B petitions. China follows far behind India in second place with 36,362 petitions filed in 2017. The total number of approvals to date in 2017 are 197,129.

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Updated Date: Oct 17, 2017 23:48:05 IST

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