H-1B restrictions unlikely to vanish anytime in near future

US visa

Attorney recommends exploring other visa options.

Last year, when Srini Ponnuswamy decided to return to his hometown in Chennai, India, after a stint in the US for over a decade, everyone including his extended family and friends assumed that his employment visa must not have been extended. “While I was on H-1B, the reasons to shift back to India were entirely personal,” he said. “But thanks to the negative media that Trump got H-1B, people just presume that those on H-1B in America are just barely hanging by the rope and could be [sent back] any day.”

For those on H-1B, the four-year tenure of former President Donald Trump was defined by his constant attacks against them and his administration’s efforts to make it more difficult to obtain the coveted visa.

When President Joe Biden entered the office, many non-immigrant visa holders were hopeful of positive changes in the work-based visa system in the United States. However, despite Biden’s reassuring position on immigration reforms, the work-based visa holders and their dependents on work permits seem to still feel the heat of administrative delays.

Many immigration experts are of the view that restrictions on work-based visas may not vanish anytime in the near future, as concerted attacks on the H-1B visa program preceded Trump.

New York attorney Mark Davies, a recipient of White House Commendation for his contribution to legal profession, said that there may be plausible reason to believe this. “The H-1B was under pressure before Trump even came to power and there is no guarantee that a new administration would change things significantly,” he said.

While immigration was one of the key issues in the 2020 election, experts caution against hoping for drastic changes despite talks of major reforms.

The H-1B visa program was introduced in the early 1990s and had its heyday during the dotcom boom of the early 2000s. But more recently, the visa program has been widely portrayed as having negative impact on American jobs.

Both Republicans and Democrats have remained sensitive on the issue of how immigration impacts the American workforce. For a long-time, and especially after Trump stormed into the White House after the 2016 elections, the future of the H-1B visa remained in question.

However, despite the continued scrutiny and shrinking scope to get a green card under an H-1B visa, the visa remained popular among Indians.

Davies, Chair of the In-House Counsel Section of the Connecticut Bar Association, said that Indians who wish to live and work in the United States may want to look at other more probable options as well. “A more durable solution for aspiring immigrants would be to opt for visas that have a positive impact on the US labor force,” he said. “The EB-5 Immigrant Investor Visa and the E-2 Treaty Investor Visa both create jobs and bring significant investment to the United States.”

Since its inception in the 1990s, the EB-5 visa has been responsible for bringing more than $40 billion into the United States, as well as creating hundreds of thousands of American jobs in the process. Hence E-2 and EB-5 remain the surer options as even Trump exempted these as part of his so-called immigration ban, the attorney said.

“We see many of our H-1B clients seeking out alternatives like E-2, L-1 and EB-5, which offer much greater freedom and flexibility in the United States,” Davies said.

But does that mean that the new administration would bring in no immediate changes to the ongoing negative image? “The main short-term change that could be expected from a Biden victory, is an improvement in administrative processing of visas,” he said.

“Currently, the process is being slowed down by funding and staffing issues, as well as by increasing requests for additional evidence from applicants. Biden is also certain to not to renew president Trump’s so-called “immigration ban” after it expires. If re-elected, Trump would have renewed this executive order by arguing that the underlying factors – namely the economic impact of Covid – is ongoing.”

Another very popular option with Indian clients is the L-1 intra-company transfer visa. This is used to move management level employees between two branches of the same company. It is possible to set up a US office of an existing Indian business and then transfer to the United States to manage that business.

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