Comments by Sanwar Ali:
It is already very difficult obtaining an H1B visa for most employers. Unless there is an exemption, available only in limited circumstances, the only option is the H1B visa quota which is usually heavily oversubscribed, with a lottery for the available visas. Under Trump the refusal rate has increased significantly. On top of this, despite the recent relaxation, there is the Trump work visa ban that still applies in many cases.
Much of the time the only option is the H1B visa. The O1 visa is only available for a limited number of people with “extraordinary ability”. The E2 visa is not available for Indian or Chinese nationals unless they can obtain another nationality. We come back to the issue of the November Presidential elections. If Trump loses against Joe Biden, which is very possible if not likely, then many of the current anti-immigration policies are likely to change.
Despite imposing a ban on temporary work visas - including the H1B visa - amid the coronavirus pandemic, the Trump administration looks set to further tighten the H1B program. The US Department of Homeland Security (DHS) recently submitted a draft regulation to the Office of Management and Budget (OMB) outlining the restrictions.
Trump has targeted H1B visa reforms ever since taking office in 2017, with a view to overhauling the program to attract the ‘brightest and best’. It’s expected that the new restrictions will redefine what a speciality occupation is under the program, plus the relationship between employer and employee.
H1B visa restrictions a priority under Trump
H1B visa reform has been a top item on Trump’s agenda and has accelerated since his work visa ban, which came into force on June 22. The OMB’s review is understood to be in its final stages before the changes are rolled out for public comments, vetted and implemented.
However, sources anticipate that public comments will be bypassed, suggesting that it’s likely the new regulation will be introduced as an ‘interim final rule.’ The OMB offices serve the interests of the US President and putting his vision into practice across the executive branch.
The new legislation wasn’t expected to be introduced until the end of December. However, with the US presidential elections fast approaching, it seems the OMB’s review has been accelerated.
The H1B visa is incredibly popular among Indian IT firms with operations in the US. Recent figures highlight that 72% of H1B visas were issued to Indians in the fiscal year ending September 2019.
US H1B visa denial rates rise
Amid imminent changes to the H1B visa program, denial rates among IT firms rose sharply in the second quarter of the 2020 fiscal year. Refusal rates rose to 29% compared to 21% for the same period in 2019 and 24% in 2018.
It’s understood that the top 25 employers of new H1B professionals experienced the highest refusal rates. Six Indian companies featured in the top 25 employers of H1B professionals with Tata Consultancy Services the only one in the top 10.
According to Stuart Anderson, the executive director of the National Foundation for American Policy (NFAP): “The highest denial rates continue to be for companies that provide information technology or other business services to American companies.”
“The data indicates that USCIS has established a different standard for deciding cases for companies that provide information technology services. US immigration law does not have a different standard for adjudications based on the type of firm or the location where work will be performed,” Anderson added.
H1B visa renewals continue to be accepted even under work visa ban
Meanwhile, although denial rates among new applications have increased and further H1B visa restrictions are expected, US Embassies in India are processing H1B visa renewal applications, provided they are with the same company and occupying the same role for which an initial H1B visa was issued.
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