India: Updates On US Immigration In The Wake Of The New Administration

Last Updated: 6 February 2017
Article by Poorvi Chothani

What if any changes have been made to the H-1B program?

The recently announced, U.S. Presidential Executive Orders do not touch upon the H-1B program. However, Congressman Zoe Lofgren, yesterday, introduced a new bill in the US House of Representatives by way of proposed statute - "The High-Skilled Integrity and Fairness Act of 2017." This proposed legislation, like other bill or similar note, if enacted would make it more difficult for certain employers to engage H-1B workers.

Do the recent Executive Orders impact travel of Indian nationals to the US?

Not for the most part. The ban is on nationals of seven countries that do not include India. However, in an executive order signed on January 27, 2017, the President instructed the State Department to immediately suspend the US's Visa Interview Waiver Program. The Visa Interview Waiver Program allows travelers to renew travel authorizations without an in-person interview.

However, this suspension now forces all re-applicants to have a face-to-face interview with a US consular officer every time their visa expires rather than simply dropping off their passport at a consulate.

Suspending the program will also create delays at consulates around the world and especially in India as the demand for visa interviews will increase significantly. None of the consular posts in India have yet announced that the "drop box" facility to avail of this waiver benefit has been suspended or stopped.

How would the H-1B changes proposed by Congressman Lofgren affect Indian companies if enacted?

The changes if enacted would make it more expensive and harder for the U.S. arms of Indian companies to engage foreign workers. Some instances of this are provided below.

Employers that have a predominantly foreign work force (making them H-1B dependent employers) will be required to pay their H-1B workers higher salaries. Under existing regulations an H-1B dependent employer can engage new H-1B staff only if they pay a minimum salary of US$ 60,000 or the workers holds a Masters Degree, which would result in a higher prevailing wage for him/her. The proposed law increases this amount to US$ 130,000.

Currently H-1B workers get paid a "required salary," which is the higher of the prevailing wage or the actual wage being paid to other workers in similar positions with similar qualifications at the same employer. It is important to note that H-1B workers are not paid "minimum wages" as reported in some sections of the press.

Further, the proposed law seeks to grant priority access to the H-1B program to employers willing to pay 200% of the salary determined by a survey. More details on this are not available at present.

The bill also seeks to reserve 20% of the H-1B quota for start-ups and small enterprises that employ less than 50 workers in all. This would impact the overall number of H-1Bs that are available to larger, established companies.

Are there any provisions in the proposed law that could be an advantage to foreign students?

It is reported that the proposed laws seek to remove visa hurdles for students and other temporary visa holders by building a bridge from F-1 student status to Lawful Permanent Residence and will reduce the burden of paper work by streamlining H-1B filing requirements.

The legislation tightens employee protection by stipulating that employers may not reduce beneficiary wages, regardless of whether the deduction is in accordance with a voluntary authorisation by the employee.

When is this likely to be considered by Congress and voted into a law?

The Zoe Lofgren bill as well as some other bills introduced by other politicians need to be passed by Congress – before they became a law. This is not an easy or quick task as we have seen with past attempts to bring about immigration changes. However, this time the huge difference is the predominance of the Republicans in Congress and the President's "will" to bring about quick change - so we could be surprised at the speed with which the bill may be passed. This could be further exacerbated as all or any of the bills could be attached to an Omnibus Bill that is going to be considered by Congress in its next session. The Omnibus Bill is to approve funding to enable the government to keep functioning beyond September 2017.

In the meantime, President Trump is expected to soon issue further executive orders impacting the H-1B program with immediate effect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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