Any move to stop the facility for extension of H-1B visas by the Trump administration in the US could lead to legal challenges, according to immigration lawyers and industry experts who expect intense lobbying could help resolve this contentious issue.
Apart from Indian IT companies, those likely to be affected by any such move include American tech giants such as Google and IBM. These companies also employ workers on H-1B visas, some of whom have been awaiting Green Cards for over a decade, the experts said. These companies may file suits against the US government to protect their employees, most of whom are mid-level or senior managers, the experts added.
Mukesh Aghi, president of the USIndia Strategic Partnership Forum, said the reported proposals are currently just rumours and there has been no official rule. "While we support jobs growth in the US, the current process of tightening H-1B is discriminatory and does have an impact on the broader relationship between India and the US." Raja Lahiri, partner for transaction advisory services at Grant Thornton India, said the proposal is a "downside" for businesses and could also have a "socio-political impact" if people are forced to leave.
On Tuesday, US news agency McClatchy reported that a proposal from the Department of Homeland Security seeks to prevent foreign workers from receiving extension to H-1B visas while their Green Card applications are pending.
Such a move will lead to a sort of "self-deportation" of hundreds of thousands of Indian technology workers in the US to "open up" those jobs for Americans, the report said, adding that it was part of the 'Buy American, Hire American' executive order signed by Trump last year. Shivendra Singh, vice-president of Indian IT lobby group Nasscom, said this is the latest in the list of proposals to "impose more onerous restrictions on the H-1B visa programme".
"We believe these efforts are driven by myths and emotions, not facts and logic. Denying consideration of extension past the first six years for H-1B visaholders with pending Green Card petitions makes no sense and would inflict harm on US businesses, and individuals and families involved as it does nothing to reduce the STEM (science, technology, engineering and mathematics) shortage, which is the crux of the problem," Singh said.
Forcing people to leave because the US government cannot adjudicate their Green Card petitions in a timely fashion makes no sense, the Nasscom V-P said.
In 2016, 13 STEM jobs were posted online for each unemployed worker in that category, or roughly 3 million more jobs than the number of people available. These trained professionals could potentially fill this gap, Singh added.
TIGHTENING VISA REGIME
Over the past year, the $150-billion Indian IT industry has felt the impact of tightening visa regime in the US. While the scrutiny of applications has become more intense and rejection rates have risen, several Bills have also been introduced that put new restrictions on the H-1B visa programme. Last month, the US revers ed an Obama-era decision to allow spouses of H-1B visaholders awaiting Green Cards to work in the US. The Trump regime has also stated its intention to revisit the lottery system of allotting visas and define special categories where H-1B visas should be allowed.
Immigration lawyers said that while measures to curtail work by spouses and an increase in visa fees may come to pass, the proposal to stop extension of visa for Green Card applicants is unlikely to be implemented.
"We are talking about over 5 lakh people who work with companies such as IBM and Google, which have huge lobby budgets and the power to litigate against the US government," said Poorvi Chotani, managing partner at LawQuest, an immigration law firm with offices in the US and India.
Google and IBM had not replied to ET's queries on the proposed move at the time of going to press.
LawQuest's Chotani said that, typically, during the H-1B visaholder's tenure of six years in the US, an employer applies for a Green Card. While the application takes about two years to be approved, the final Green Card can take many more years to come through since each country has a quota and in the case of India and China it can take as many as 10-12 years to free up the quota.
"What they are proposing will pose huge practical problems since a person is not likely to be at the same position in seniority and may not be needed at the same job location after 10 or more years when the Green Card is finally allotted to him, especially if he or she has moved back to India," Chotani explained. The restrictions have led to a drop of nearly 50% in visa applications from Indian outsourcers, according to Nasscom.
HR 170 BILL
A Bill, titled The Protect and Grow American Jobs Act (termed as HR 170), that was passed by the House Judiciary Committee and is awaiting nod from the US Senate is another major cause for concern.
The HR 170 Bill classifies any company that has more 15% of its workforce working onsite as "visa dependent". These companies have to necessarily increase the minimum salary for H-1B visaholders from $60,000 to $90,000 and are forbidden from moving employees on visa from one client to another. Clients have to certify that the visaholder is not displacing an existing employee for the entiretenure, which could be six years.
Nasscom has termed these provisions "onerous" and is taking up the issue with higher authorities in India and the US.