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What experts say about the new H-1B visa rule

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Prioritizing advanced degree holders and a future registration required for companies. What would these rules mean for H-1B seekers?

When President Trump announced, earlier this month, that big changes would be coming soon to the H-1B policy, there was a lot of intrigue. While many feared that the president’s promise of bringing simplicity and certainty may not after all be that simple for hundreds of thousands of H-1B aspirants, others hoped that the change may bring some much-talked about reforms in the H-1B visa program.

Yesterday, the Trump administration unveiled the new rule on the future H-1B visa allocation. Beginning April 1, the H-1B visa allocation would tilt in favor of those with advanced degrees from US universities.

With this change, Trump is directly keeping up the promise he made two years ago to prioritize the high skilled applicants and reducing the visas granted to outsourcing firms.

But what would this new rule entail on the ground for H-1B hopefuls?

The American Bazaar spoke to immigration attorneys and experts on whether it is a small change with big obstacles or a move towards genuine H-1B visa reforms. Here are their responses:

Everything about the new H-1B rule

Vishal Ghadia, a Florida based paralegal who works with immigration attorneys through his Legal Process Outsourcing company, explains the rule for our readers: “Starting April 1, 2019, USCIS will change the H-1B lottery process. USCIS will put all petitions (regular and masters cap) in the regular cap and conduct a first lottery to select 65,000 petitions. Then the unselected masters cap petitions will go into a second lottery where 20,000 petitions will be selected. Thus, Masters’ Cap petitions will get two chances of getting selected. USCIS estimates increase of up to 16 percent in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution.”

On the second element of the new rule, Ghadhia says, “USCIS has decided to suspend the previously planned online H-1B registration requirement for the FY 2020 Cap to complete all requisite user testing of the new system and ensure that system and process are operable.”

Unstable and flawed?

The rule has drawn flak from many attorneys keeping a close watch. Anu Peshawaria, a renowned federal immigration lawyer at the US Supreme Court, says, “The new H-1B rules are a trick to trap companies and are unstable and technically flawed. It discourages innovation and encourages unduly harsh results most likely in placing individuals in removal proceedings.”

Some attorneys recognize that granting more visas for masters’ degree holders can be commendable, and they insist that there should be more to the rule. Leading immigration attorney Fiona McEntee of the Chicago based McEntee Law Group says: “We applaud the USCIS for trying to increase the number of H-1B petitions awarded to U.S. Masters, degree holders. However, we would strongly encourage USCIS to consider increasing the number of H-1Bs available in the cap to reflect the needs of the market and the U.S. employers who struggle to fill open positions, especially in STEM.”

Interestingly, even though Indians mostly associate H-1B visas with tech companies, prominent immigration attorney Rekha Sharma-Crawford points out how the new rule may be disadvantageous to another very qualified group of Indians. She says, “The final rule is troubling because it automatically creates a severe disadvantage for Indian physicians who obtained their education outside of the United States, rather than at a US institution, and are now seeking employment in the US.”

She adds, “I think many physicians are going to find themselves facing uncertainty under this system which will only create a greater incentive for them to look to places other than the US.”

On the current suspension of registration, McEntee says, Regarding the implementation of the electronic registration system next year, we also applaud USCIS for listening to the public comments by thousands of business immigration attorneys through AILA. This next year will be critical for testing and training, and we thank USCIS for hearing our concerns.”

Advantage Higher Education

Ghadia argues the case for higher education. He says, “Master’s degree students in the U.S. spend prime years of their lives and huge sums of amount for the fees to receive advanced degrees. Current H-1B selection process leaves them with a lot of uncertainty for their future. It was about time that USCIS gave priority to these students in H-1B selection process.”

On the growing dissatisfaction, Ghadia says, “Indian outsourcing companies will not be pleased with this regulation since it decreases their chance of getting selected. But as part of Trump’s ‘Buy American, Hire American,’ order, this should encourage companies to hire more workers from the US including Indians with Masters’ Degree.”

Can be challenged in court?

Some experts also expressed the view that the new rule has the potential to be challenged in court by outsourcing companies. Sharma Crawford says: “The final rule, once implemented, will most certainly get snagged in litigation as the plain language of the law gives priority to the 20,000 advanced degree exception petitions rather than the random selection process suggested by the administration. Such litigation is yet another factor which will lead to more uncertainty, rather than provide any assurances or security to those seeking H-1B visas.”

Peshawaria explains: “In the US system of judicial review, constitutional questions can be raised only in connection with actual ‘cases and controversies.’  Class-action suits can still be brought in however courts will not decide a constitutional question unless parties have a direct, personal interest. This requirement can sometimes frustrate efforts to obtain pronouncements on disputed issues.”

READ MORE: 

Trump administration proposes changes to streamline H-1B process(December 1, 2018)

Trump signs H-1B visa executive order ‘Buy American and Hire American’ (April 19, 2017)

Trump to sign executive order to overhaul H-1B visa program on Tuesday(April 18, 2017)

Anti-H-1B group sues the federal government to seek data from USCIS(April 20, 2018)

Trump administration may soon end H-4 Visa Rule: report (February 1, 2018)

Stronger economy may lead to more H-1B petitions (January 22, 2018)

Tech industry urges USCIS not to cancel H-4 spouses’ work permits(January 19, 2018)

Chuck Grassley again denounces H-1B visa program (January 18, 2018)

USCIS says it’s not ending H-1B visa extensions (January 9, 2018)

Proposed move to end H-1B extensions may affect up to 400,000 Indians in US(January 2, 2018)

DHS mulling major change to H-1B visa program (January 2, 2018)

H-1B visa changes in 2018: Employer preregistration, redefining the high specialty occupation, and withdrawal of work-permits of H-1B spouses(December 26, 2017)

Trump to end H-4 EAD program for spouses of H-1B workers (December 15, 2017)

H-1B visa petitioners will witness an increase in the number of denials this year, according to experts (December 11, 2017)

Indian IT companies are top recipients of L-1 visas, says USCIS report(October 13, 2017)


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