Recent Changes to H1B Visa


Posted On : June 1, 2021
Recent Changes to H1B Visa
Since the start of his tenure, previous US President Donald Trump has favored laws on restricting immigration. And just before end of his tenure, Trump has once again tweaked the H-1B Visa rules, in view to protect Americans from unfair competition posed by the entry of low-cost foreign labor. This write-up explores such changes and lists them.
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Table of Contents

What is H1B Visa?

A H1B Visa is a special work permit that allow professional from foreign country to go and work in the United States of America for their companies. The person applying for the visa must meet following requirements: 

  • Having theoretical and practical application of a body of highly specialized knowledge. This includes researchers, doctors, Engineers, etc.
  • The person should have a bachelor’s or master’s degree in that specific subject or specialty.

H1B visa is preferred by potential employee who wants to work in USA as the applicant is sponsored by American Company hiring them. The company also pays all fees attached to visa and is required to submit all the paper work. 


Conditions that American Company has to fulfill to employee the foreign worker is to prove and get H1B visa for foreign worker is to show to UCIS (U.S Citizenship and Immigration Services) that knowledge and expertise provides by such employee is not available in U.S national candidate available for the job.

The Visa is valid for 3 years or if he/she loses the job whichever is earlier. The visa can be upgraded to green card if employee is still employed in the company or he/she gets 60 days to get a new job in his field of specialty if visa expires. 

According to the Department of Labor website, “The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the US workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.” 


Steps to get H1B visa

1. First, the employer has to file an application form with the Department of Labor. The employer has to show adherence to the H-1B, H-1B1, or E-3 program requirements. The employer must give proper document declaring that that qualified Americans are not available for the job and that salary to be paid to the foreign employee are at least equal to the prevailing wage and wages paid to other employee at same positions within the company.

2. After the approval of the Labor Condition Report by the department, the employer must file a Petition for the foreign Worker with the US Citizenship and Immigration Services. The employer also has to provide supporting documentation and payment. Employers must provide following information:

  • company name, 
  • company business, 
  • EIN, and 
  • address, 
  • authorized representative/signatory of the company’s full name, title, phone number, and address. 
  • Companies must then add information for each “beneficiary,” referring to potential H-1B visa holders the company wants to sponsor. 
  • USCIS then asks for the beneficiary’s legal name, gender (only options available), date of birth, country of birth, country of citizenship, passport number, and whether they are eligible to hold a US master’s degree. Department charges $460 fee for one petition filed, and one company has a limit to submit up to 250 petitions. If the petition is selected then companies are given 90 days to complete and submit their workers’ full applications.

3. After the company’s Petition for a Non-immigrant Worker is approved by the USCIS, such worker can apply for the actual H-1B visa through his country. The visa when approved will allow the individual to enter the US. If the individual is already in the US legally, the actual H-1B visa is required if the employee wants to leave and re-enter the US. 


Changes in the Rules in 2021

Since the starting of his tenure, previous US President Donald Trump has favored laws on restricting immigration. And just before end of his tenure, Trump has once again tweaked the H-1B Visa rules, in lieu to protect Americans from unfair competition posed by the entry of low-cost foreign labor.

Last US President Donald Trump has always pushed for strict immigration laws so that employability of American native increased. And towards the end of his tenure in December, 2020, His administration tweaked the rules to increase the wages for those working in US on H1B visa or holding employment based – green cards. It also freezes issue of new H1B visa and green card until 31st, March 2021.

As per the new rules some protocols were made mandatory for US employer or US company to discourage them from hiring outside USA. One of such rule was revised wage list. A wage list is a minimum wage that employer has to pay to its employee which he has employed from foreign country. There was a significant rise in that percentile so as to increase the cost of hiring foreign employees.

The new rule also replaced current lottery system which earlier gave preference to first cum first serve basis but due to change in the rule new lottery system will be biased towards the person getting higher wage and has higher skills. As US has limited number of H1B for one fiscal year so a lottery system was setup to select applications received. The new change in the rule will discourage employment of foreign worker at lower position in an US company.

This year application for H1B visa was closed in March 2021. 


Impact of the Rules

As new rules give preference to people will more experience and skills so students, fresher and people with less experience will suffer a lot to get job in America because preference will be given to experienced people. 

Tech companies in USA is heavily dependent on the human resources of Indian after new rule have to pay more salary to them to hire from countries like India. More than 70% of H1B visa Application are from India and china and now changes in these rules might reduce employability in the US market. But on the positive side of changes these policies will help Indian employees to earn more in American market.

In 2018-19, Companies like Google, Facebook and Apple had hired more than 13,000 highly skilled IT employees with H1B work visas, either directly or from existing H1B holders looking to change jobs in order to stay in USA, the data is from US Department of Labor.


Rules Challenged in the Court

The new rules were challenged in the US court before it could come into force. It was contended in the court by NASSCOM. It was objected by NASSCOM pointing that both new rules would harm American businesses, American workers, and to the United States’ economy as a whole. That it would cause irreparable harm to the American IT companies. Court held that evidence presented government by did not support any of government’s assertion that the unemployment crisis was caused by the pandemic. And decision to change the rule for H1B visa was invalid and over ruled by the court on the context that US Departments of Labor and Homeland Security had violated the Administrative Procedures Act (APA) when issuing two new regulations as IFRs and not giving public to give their comment on the new rules. So new rules never came into force. 


Conclusion

Working in United States of America is dream of many students pursuing different professional course in India or even fresher. Making H1B Visa rules stringent makes that dream far-fetched for a lot of students. The lottery system which favors candidates with higher experience only allows US companies to hire from outside American is also barrier to get employed in the USA. 


With new laws not being in force and declared invalid came as sign of relief to many aspirants who were trying to get job in united states or was already working in the United States. It would have reduced US employer ability to hire skilled foreign worker and irreparably cause problem for the US companies and economy by firing current employees which would disrupt ongoing assignment and projects. Which will also increase the cost and also force to transfer some assignment outside US to cut costs.


Written By:
Ayantika Mondal @ Prime Legal

Ayantika Mondal @ Prime Legal

Bangalore

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