Home » Donald Trump » Sheela Murthy to those on H-1B: It’s good to be cautious, but don’t panic

Sheela Murthy to those on H-1B: It’s good to be cautious, but don’t panic

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Sheela Murthy

The founder of Murthy Law Firm speaks to The American Bazaar.

Sheela Murthy, the founder of Murthy Law Firm, is one of America’s best-known immigration lawyers. The firm’s website, Murthy.com, is one of the best resources available for those looking for visas and immigration-related information. In a recent interview with the American Bazaar, the Owings Mill, MD, -based lawyer spoke about the current debate on H-1B reforms, Trump’s executive orders on immigration, and panic among immigrants, among other issues. Here are edited excerpts:

There seems to a lot of panic among H-1B, H4 and L1 visa holders about a potential crackdown on these visas. There has been a lot of debate going on in the context of presidential politics and job losses. A number of bills seeking to reform the H-1B visa program are in front of Congress. What advice would you give these visa holders?

I think it is good to be cautious. It is good to be keeping up to date with changes in the law. However, as of today, no bill or regulation has specifically touched up H-1s, or L1s — or those with Green Card cases pending. So, I would tell people not to panic, not waste your cosmic and spiritual energy in focusing on something that we don’t know if anything will ever come to pass. But it is good to keep your eyes and ears open if something comes up, and depending upon what it is, we can come up with strategies on how to try to respond to it in the most effective manner. If necessary, like the executive order on travel ban that was successfully challenged in court, one can file a lawsuit and challenge the government.

If any of the bills that are before Congress becomes law, will it affect people who are already in the country on H-1B or L1?

That really depends whether the bills are retroactive or prospective. It depends on how it is worded. Generally, they tend to be not retroactive — they don’t try to go back and impose penalties for a violation that was not a violation prior to the enactment of the legislation. However, they could make everyone who is on H-1B status today subject to the new regulations effective from the date of the bill becoming law. However, many of these bills never make it out of committees, let alone signed into law.

The USCIS will start accepting H-1B petitions for the 2018 fiscal year early next month. Have you seen any drop in the numbers?

We are getting overwhelmed with cases, and I am almost beginning to think we are getting a much more increased volume for filings at the Murthy Law Firm. The number is not going to reduce. I think it is going to increase. I think a lot of people on H4 EADs are going apply for H-1Bs.  Spouses who come on H4, who are currently on H4, they want to apply. And future H4 spouses are apprehensive that EADs may no longer be available, they want to apply for H-1B. Many of the STEM graduates who have finished their one-year or two years of their STEM OPT, they are applying.

I expect the H-1B filings for this year to be even more than last year. Last year, it was 236,000 and, 1 in 3 got picked up. This year, I expect more applicants and I expect potentially 1 in 5 cases to be picked up.

There has also been a lot of talk about a potential executive order on H-1B. What are you hearing it?

With respect to the Executive Order on H-1B workers, the unsigned draft version of the executive order instructs the secretary of the Department of Homeland Security John Kelly to consult with the US Secretary of State and the Secretary of Labor to restore the integrity — of whatever that means — of employment-based non-immigrant worker program to better protect US workers and foreign workers affected by those programs, and to consider ways to make the process for allocating H-1B visas more efficient and ensure that the beneficiaries of the program are actually the best and brightest. We don’t even know what does best and brightest mean because that is a [subjective] term.

Are they trying to copy the Canadian style of giving point systems and choosing immigrants?  If your points add up to a minimum of, say 40 or 50, or whatever it is, based on a master’s degree, or based on one’s work experience, they allow you to come in?

The draft talked about providing recommendations for making US immigration policy to better serve the national interest of the United States. H-1B workers, L1 workers and people on B1 are very, very concerned about it. And the same draft executive order also talks about the actual or potential injury caused to US workers by H-1B and L1B and workers.

Trump talked about a merit-based immigration system at his first State of the Union address last month. Is that where we are heading? That would end the Green Card lotteries.

Yes, they are talking about eliminating the Green Card lottery. But it would not impact Indian nationals as they are not part of the lottery system at the moment.

They are planning to reduce or eliminate many family-based categories. I don’t think they can take away the ones they have taken the filing fees. Going forward, yes, they can stop them.

Interestingly, the one merit-based immigration visa they have is H-1B, which is being criticized at the moment…

In their mind, there is no merit in H-1B. It’s true. But it could be argued that there is some merit in it because it is about specialty occupation. But it is also not merits in the sense that the visa requires a bachelor’s degree. It doesn’t require years of experience, or any kind of high level [expertise]. It is a very basic threshold level. So, they are saying, “let us scratch it.”

Also, there are reports that there’s a spurt in administrative processing. Is that accurate? If yes, who are the people put on administrative processing?

All the cases are of the people who are going to the US consulates for visa issuance. Their cases are being stuck in what’s called the “administrative processing,” or 221G, that are being issued to these people. Basically, they are saying that something is not completely in alignment. Right side and the left columns don’t match perfectly. So, we are not convinced based on the job. The job duties, the job locations, the employee’s qualification, the employer’s qualification, the employer’s bona fides, that the tax returns are not matching; that they have collected money for filing H-1 petitions. They are taking into accounts all these factors and any sort of gray areas and issuing 220Gs fairly regularly.

Are the ones that are trapped the ones that are working for consulting firms?

Yes, by and large, the majority of the 221Gs we are seeing are those of consulting companies.

What do you think has triggered a more aggressive approach lately?

I think when the president of the country talks about immigration all the time, it affects the lower level people at the airport — even though consulate and foreign service people are far more qualified, they are way more smart and knowledgeable. I think subconsciously when you think that your boss or boss’ boss’ boss thinks that this is the way in which the country should move, it affects. That’s why leadership is so important. One person can change the entire culture of an organization, or of a country. There is a feeling that is why we are seeing CBP [Customs and Border Protection] people are sending people back at the airports.

Are you advising your clients to avoid travel?

If you are someone from the [six] countries that have been on the list of the travel ban, I would tell those people in those countries to absolutely not travel, and not even take a chance unless it is a life and death situation that you have to go. But one has to be prepared to not come back in months or even years. But people with an Indian passport, whether, they are on H11, L-1 or B-1, you should be able to travel back and forth because there have been no legal changes. That being said, the situation can always change with little, or no advanced warning. It is possible that additional immigration-related executive orders will be on the horizon. One of the existing could be expanded to include additional groups of foreign workers. And there is already a lot of noises made about what kinds of activities are allowed for B-1 and B-2 visitors.

There may be further restrictions on B1, B2 visas?

For sure, there might be restrictions on B1 available today under the Foreign Affairs Manual — or the FAM — in lieu of H-1 which is used, not routinely but when needed. That, and the B1 use of the domestic servants — if you are in a certain category of visa, you are allowed to bring maids. All those uses of B1 for housekeepers and nannies might soon come to an end.

There are reports that there is a spurt in investment visa applications because they are also talking about cutting down on investment visas or even eliminating it…

Yes, they are talking about increasing the minimum investment threshold. Towards the end of April, they are thinking of increasing the minimum investment from $1 million to $1.85 million; from $500,000 to $1.35 million. They are also talking about cutting back. There are different kinds of proposals.

What about students on F1 visas?

They are also talking about F1 and OPT and CPT programs. There is a draft executive order that calls for the DHS to start work on a regulation that will reform practical training program for foreign students to prevent disadvantaging US students in the workforce and to better protect US and foreign workers affected by such programs.

Is that part of the current executive order or are there multiple orders?

There are multiple executive order drafts. They have released a lot of them, which are not signed. They have kept the drafts ready, event before Trump got elected. And since the day he got elected, they have been preparing this very aggressively.

So, this will affect H-1b as well as L-1 and even F-1 students, right?

All these executive orders, remember, they haven’t been signed, they haven’t been released yet but these are definitely on the horizon. This is what Trump has talked about all through his campaign and in the unsigned executive drafts that have been already released to us. I think they are really tightening the screw on every possible angle.

What would your one final advice to those one work visas and immigrants?

Although there is lot of concern and panic within the immigrant community, we have —whether it is a reputed law firm like Murthy Law Firm or the American Immigration Lawyers Association, the American Immigration Council, or other pro-immigrant organization throughout the country — have set up rapid response teams to monitor and share upgrades on changes in the law. Of course, we are updating Murthy.com regularly. The whole idea is to empower people with knowledge and information. Tell them that we can all work together to overcome challenges, exchange information to find legal avenues, options, and loopholes that we can continue to take advantage of. And at the core of it, let’s not forget, that we are a nation of immigrants, and this whole country is based on the concept of the hard work of immigrants. And nobody had talked about this: If President Trump truly wants to make America great again, then that does that mean that every single person, including Trump, will all give it back to the Native Americans? Because that’s what they think: America went downhill from the time’s damn immigrants came in. So, when people call for making America great again, what is “making?” Stopping at the time that Trump wants? Is it open till today? Where is the line? When was it great? Are you talking about the time in the 1920s and ’30s when Jim Crow laws existed and the blacks were beaten to death? What great, what time frame are you thinking?