H-1B visas, I am sure you must have heard about this burning topic in the news somewhere or the other. It is a hotly debated topic presently. Let us look at what it is, who all are eligible for it, what has its history been, its structure and duration, and why it is in the news lately and that if it is fair or not.
What is the H1B visa?
The H-1B visa is a United States of America visa under section 101(a)(15)(H) of the immigration and nationality act, which requires US employers to hire foreign employees in specialised occupations temporarily. It is employment-based, non-immigrant visa for temporary workers of the country of America. For obtaining this visa, an employer has to propose a petition in the US for this Visa and apply to the US immigration department for its H1B visa petition. This approved petition is a work permit that enables you to receive a visa stamp for that employer to work in the US.
What is its eligibility?
The H1B visa eligibility shall be issued for a specific profession. It shall require the theoretical and practical application of a body of specialised expertise and shall need the Visa holder to have at least a bachelor’s degree or equivalent.
Total quota for it is :
- The United States citizenship and immigration services set limits on how many H1B visas are issued every year.
- These numbers may change as per the regulations of the US government.
- Historically the cap has been set at 65,000
- An additional 20,000 H1B visas are issued for qualified people who have completed their Master’s degree from the United States of America. The scooter is independent and in addition to the general 65,000 quotas.
- A deadline is set for each calendar year in which employees are expected to submit their H1B visa petitions for the next financial year.
- No petitions are accepted after this date due to the limited capacity of H1B visas issued there is usually a rush to meet the Within a few days of the deadline.
- If the cap remains unmet, then the United States citizenship immigration services continue to accept the applications until the numbers are not met.
- The employer pays the fee for filing the H1B visa, otherwise referred to as the H1B sponsor. The fees generally range from $1570 to $2320.
What is its history?
The H1B visa is rooted in the 1952 immigration and nationality acts H1 visa; the 1990 immigration act established the split between H – 1A for nurses and H – 1B. For the fiscal year, 65,000 H1B visas were made available, out of which employees could apply via labour requirement applications. The laws of 1998, 2000, 2003 for Singapore and Chile and the H1B visa reform act of 2004, 2008 and 2009 menu changes to the H1 – B regulations. Citizenship in the United States and the country’s immigration service rules were modified in those years.
Structure of the program
H1B visa allows an individual to enter the United States for temporary employment with the speciality employer. The regulations define a speciality occupation as requiring the theoretical and practical application of a body of highly specialised knowledge in the field of human endeavour including but not limited to biotechnology, chemistry, computing, engineering, physical sciences, statistics, architecture, medicine and health, Journalism, dentist, physicians, nurses, physiotherapists etc.
Similarly, a foreign worker must have at least a bachelor’s degree or equivalent work license if he or she is required to practice in that field. H1B visa work authorisation is strictly limited to the employment of the sponsoring employer. An H1B visa status must continue to be employed by their employer to remain in H1B visa status.
Suppose the person’s employment ends for any reason. In that case, the person must leave the United States of America or till the person does not apply for and is granted a change of status or finds another employer compatible with the H – 1B status. The duration of the stage for individuals with an H – 1B visa is three years, extending to six years.
Why has it been continuously in the news lately?
So, as we all know that the H1B visa process has been a top-rated programme for skilled foreign nationals, who want to temporarily live and work in the United States of America, for the fortunate few who get an H – 1B, it is also an opportunity to eventually obtain permanent residency that is to obtain a green card in the future. America recruiting firms typically require scientific expertise in short supply of domestic employees.
However, in October 2019, Donald Trump’s administration proposed another series of obstacles to obtain the H – 1B visa process. In June, this year there was a suspension on foreign workers’ entry, and it was an attack against the H – 1B programme. However, experts say that Donald Trump may not be the only obstacle in the road. So let us break down the obstacles and have an in-depth look at them.
What is going on with H1B?
According to the new guidelines, the H – 1B visa pay requirements widely used by technology firms to employ qualified Indian workers for those arriving in the United States of America have been substantially expanded by the Department of labour. Later that month, the Department of Homeland security declared an end to the lottery in a statement titled “DHS, Trump administration protect American jobs from unfair foreign competition.’’
Citing the US pandemic of COVID-19 and unemployment, Donald Trump signed an executive order on June 22, 2020, to freeze the issuance of green cards and temporary workers visas, including H – 1 B, H – 2B, J and L, by the end of the year. This involves the dependents as well. The order said that “in the unique circumstances of the economic contraction arising from the outbreak of COVID-19, such non-immigrant visa programmes authorising such jobs pose an unusual danger to the employment of American workers. “ according to the immigration lawyers employees with approving visas for the fiscal year 2021 beginning in October will be subject to this regulation.
“This will give priority to the collection of H – 1B registrations or petitions if the registration process is suspended based on corresponding wage levels to protect the economic interest of US employees, which also will be able to make US employers meet their personal needs and remain globally competitive.“ said the statement.
“Modifying the H1B Selection process by replacing the random selection process with the pay level selection process is a better way to allocate the H- 1B visas when demand exceeds supply. “ “If finalised as proposed, this new selection process would encourage employers to offer higher wages or petitions for positions requiring higher skills and higher-skilled workers instead of using the programme to fill relatively low paid vacancies” the statement added.
Many Indians now fear that this would place them at a disadvantage to American workers because they have historically ordered lower salaries. On October 30, 46 technological firms which include Twitter, Facebook, Google and Amazon filed amicus brief calling into question the new laws. Briefly saying the new DHS and DOL rules will dramatically reduce US firms’ ability to hire the skilled foreign workers – a senior DH is officially estimated that more than one-third of H – 1 B visas petitions will be ineligible. This would dramatically reduce the H – 1B scheme’s economic benefits, reduce the US economy’s recovery from the pandemic and increase US firms dependency on non-US operations – inflicting long-term harm to our nation’s economic development.
What are the other options left with Indians, or what is the way forward from it?
Many businesses have switched from the H1B visa to the L –1 visa which is an intracompany transfer – if a worker is working in India, they can be transferred to the US to the same or similar – one company. Another alternative is the EB –5, an investor visa that allows a person to make a $900,000 investment in a US venture. The EB5 is a permanent visa and does not face renewal uncertainty like others.
The other option that Indians are exploring is that many US universities who also have rich and wealthy family backgrounds explore the E – B5 option. It costs an additional year of tuition for families who can afford it. So, the EB-5 Visa has witnessed a great amount of interest from the Indian families. Still, irrespective of that, it does have a waiting period of 5 to 8 years for Indians because of the country-wise cap on visa allocations. There have been individuals who have been considering other avenues to get into the United States via other countries.
To further simplify understanding of this process, I would like to give an example of a faster and cheaper route that is gaining popularity among Indians. It is to get citizenship to Granada, which is a Caribbean country. Indians are not eligible under the US E2 treaty investor Visa. By acquiring Grenada citizenship which does not require residence with an E2 visa, the applicant and the family may initially enter the US for five years with indefinite extensions.
Do you think it is fair to tighten the H1B visa rules?
The new restrictions have faced a lot of criticism from business groups who insist that H1B visas are a necessity in helping to address the shortage of skilled American workers. It will pose a great challenge for the IT sector as a greater compliance burden is cast on them. There is not sufficient pool of employees with the requisite skills and education that IT companies need.
So, I feel that the more the restrictive US immigration get the mood of mass immigration would happen to other countries like Canada and more offices would open up in other countries. This would show great losses to America. It would be unfair for Indians aspiring to go to America to lose out on good employment opportunities.
However, there is a silver lining to every dark cloud. In this case, also we can see a silver lining to this dark clouds of suspension of H – 1B visas as the next president that is Joe Biden might bring in some changes to these new rules of H-1B visas that happened under the administration of Donald Trump.
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