Spouses of Indian H-1B workers won’t be in contention to get work permits.
By Sujeet Rajan
WASHINGTON, DC: The cap on H-1B visas will double, from the existing 65,000 to 110,000 under the proposed “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013” by the Senate’s Gang of Eight, which is likely to be unveiled officially today, but there are plenty of other requirements that indicate that companies, and especially Indian tech companies, would have to follow some stringent regulations in obtaining those visas and sponsoring employees is going to cost a lot more.
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Johnson L. Myalil, an immigration attorney based in Virginia, commenting on the proposed bill, says: “They are suggesting a lot of changes, not only the issue of undocumented aliens, but also in the areas of H-1B visas, employment based “Green Cards,” and family based immigration.”
Apart from the increase in the cap for the regular category, the proposal also seeks to amend the current 20,000 exemption for U.S. advanced degree holders to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. Schools. It’s however not clear if these exemptions will also include students from the business and liberal arts fields, a subject which is going to be contentious going forward as there has been talk of STEM students getting automatic Green Cards upon graduation.
If only students of STEM are favored, what it tantamount to is that a brilliant student who has got a full scholarship from Delhi University to do a Ph.D. program in English literature at an Ivy League university, for example, will have to wait in line for a Green Card, which may take a decade or more, but a student whose father has the money to send him or her to even an average school here for a master’s program in computer science – instead of paying capitation fees for the commercial engineering colleges in Manipal, for instance – will get a Green Card after graduating in two years.
The gang of Eight proposals say that the cap on H-1B can be elevated in the future, and can go as high as 180,000, though the most the cap can increase/decrease by each year is 10,000 visas.
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The proposals seem to underline that the new regulations will try to “prevent H1B workers from undercutting the wages paid to American workers by requiring employers to pay significantly higher wages for H1B workers than under current law (and to first advertise the jobs to American workers at this higher wage before hiring an H1B worker).”
Another interesting clause is that spouses of H1B workers with be allowed to work in the country only if the country of the worker provides reciprocal treatment to spouses of U.S. workers. Thus, in the case of India, since it does not allow spouses of foreign workers with work authorization permits, spouses of H1B workers will also be ineligible for the same.
The bill says that it seeks to establish a 60 day transition period for H1B workers to change jobs.
“We will provide dual intent visas for all students who come here on bachelor’s degree programs or above,” it says. “We crack down on abusers of the H1B system by requiring “H1B dependent employers” to pay significantly higher wages and fees than normal users of the program. If the employer has 50 or more employees, and more than 30% but less than 50% areH1B or L1 employees (who do not have a green card petition pending), the employer must pay a $5,000 fee per additional worker in either of these two statuses.”
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If the employer has 50 or more employees, and more than 50% are H1B or L1 employees (who do not have a green card petition pending), the employer must pay a $10,000 fee per additional worker in either of these two statuses.”
“We will also crack down on the use of the H1B and L visas to outsource American jobs by prohibiting companies whose U.S. workforce largely consists of foreign guest workers from obtaining additional H1B and L visas. In Fiscal Year 2014, companies will be banned from bringing in any additional workers if more than 75% of their workers are H1B or L1 employees.”
It adds: “In Fiscal Year 2015, the ban applies to companies if more than 65% of their workforce are H1B and L1 workers. In Fiscal Year 2016, the ban moves to 50%. We require recruiting of American workers prior to hiring an H1B nonimmigrant. The Secretary of Labor must establish a searchable website for posting H1B positions. The site must be operational and online within 90 days of the passage of the new law. We require employers to post a detailed job opening on the Department of Labor’s website for at least 30 calendar days before hiring an H1B applicant to fill that position.”
It also says: “We bar employers from recruiting or giving preference to H1B or OPT workers over American workers. We establish significant new authorities and penalties to prevent, detect, and deter fraud and abuse of the H1B and L1 visa systems by fraudulent employers.”
To contact the editor, e-mail: sujeetrajan@americanbazaaronline.com