HOW WILL THE H-1B PROCESS CHANGE DUE TO TRUMP

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President Donald Trump, the 45th POTUS, took charge on January 20th with multiple clouds of apprehension about the policies that he had promised to implement. With the Executive Order (EO) on January 27th restricting immigration from 7 countries, these apprehensions looked to be materializing sooner than expected. With the number of students applying for higher education in the US at an all-time high, and increasing at a rapid pace, the EO on immigration and President Trump’s comments on visa misuse and outsourcing of American jobs have led to several furrowed brows. Since January 2017, three separate bills were proposed to amend the current H-1B system by Senators Chuck Grassley and Dick Durban, Representative Darrell Issa and Representative Zoe Lofgren. These proposals vary in approach with respect to the priority, degree requirements and minimum salary requirements. For example, Senators Chuck Grassley and Dick Durban have recommended elimination of the lottery system and priority given to foreign students educated in the US. Representative Zoe Lofgren has proposed a market based allocation system wherein individuals who are offered the highest salaries will be awarded the H1B visa first. The intent is to prioritize issuance of employment visas for individuals with specialized skills.

Much is written in the press with respect to Representative Zoe Lofgren’s proposals is her Highly Skilled Integrity and Fairness Act of 2017. This Act suggests market based priority allocation to those companies willing to pay a minimum of 200 percent of the wage calculated by a survey (amounting to approximately US$130,000) and raises the minimum salary level for H-1B dependant employers that are exempt from non-displacement and recruitment attestation services to a wage level that is 35 percentile points higher than the median national annual wage or approximately USD$132,000 for Computer and Mathematical Occupations published by the Department of Labour Occupational Employment Statistics.   She has further recommended withdrawal of the Master’s degree exemption for H-1B dependent companies.

For any of these proposals to be enacted into law, these bills have to be passed through the House of Representatives and Senate and signed by President Trump. Though it is quite clear that there will be changes to the existing H1B regulations, it is unclear which of the proposal(s) will be documented in the final bill. Rest assured that the bill will be thoroughly discussed with significant lobbying happening on the side lines. Already, Mr. Vikas Swaroop, spokesperson of the Ministry of External Affairs, Government of India, has raised his concerns about H1B and L1 proposed changes, which have been conveyed to the US at the highest levels.

In addition to the above, another pressing concern that students expressed was regarding the OPT policy that the new administration is likely to adopt. A series of unauthenticated tweets by a PhD student sparked rumours about Trump government’s intention to cancel the OPT provision, or roll-back the extensions made under President Obama’s government. However, upon careful study of the proposed Executive Order — https://cdn0.vox-cdn.com/uploads/chorus_asset/file/7872567/Protecting_American_Jobs_and_Workers_by_Strengthening_the_Integrity_of_Foreign_Worker_Visa_Programs.0.pdf, one notices that the EO nowhere mentions OPT (which is covered under the F1 visa). Neither does the document contain any statement calling for a roll-back of the OPT extension.

We must at this point adopt a wait and watch approach with respect to the contours of the final bill. In the meantime, we recommend every student to continue with his/her plans and make a final decision at the appropriate time. It is expected that the final bill will be legislated before the next H-1B season, which is in April. Till then, let’s hold our horses and not jump to any hasty conclusion.

H-1B PROCESS CHANGE TRUMP