New US Norms For H-1B Visa

As the recession in the West deepens, protectionism is on the rise. A bill has been introduced in the US Senate which, if it becomes law, would place severe restrictions on American employers engaging the services of foreign workers on H-1B non-immigrant visas. The bill has made India’s computer software development and business process outsourcing industry rather jittery.

Given that the skilled professionals from India are the one who account for the maximum number of H-1B and L1 visas, Indian professionals followed by those from China are likely to be hit the most if the legislation introduced by Senators Chuck Grassley and Dick Durbin is passed by the Congress and then signed into law by the President.

The bill, introduced, requires all employers who want to hire an H-1B guest worker to first make a good faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers.

The bill will put a stop to the outsourcing of American jobs and discrimination against American workers. The H-1B visa programme should complement the US workforce, not replace it. The bill prohibits the practice of “H-1B only” ads and prevents employers from hiring additional H-1B and L-1 guest workers if over 50 per cent of their employees are H-1B and L-1 visa holders. It gives power to the department of labour to investigate, audit and penalise abuse of H-1B and L1 visa employers.

Restrictions on Companies

The US controversial restriction on companies from hiring skilled foreign workers with non-immigrant H-1B visas will continue for only two years. As part of a stimulus package passed last month for revival of the economy, President Barack Obama signed a new law, named “Employ American Workers Act”, which makes it difficult for companies having received government bailout funds to hire H-1B foreign workers.

However, the US Citizenship and Immigration Services (USCIS), in a circular issued with its invitation of H1-B applications for the next fiscal, has now made it clear that the EAWA requirements are not permanent and would “sunset two years from the date of enactment.” EAWA, which prevents a company from displacing US workers when hiring H1B specialty occupation workers if the company received stimulus funds, took effect on February 17, 2009 and it applies to any “hire” taking place before February 17, 2011.

US Immigration & Nationality Act

Many Indians who are adept at information technology have perceived the US as a land of milk and honey. But even they are no longer rushing to catch the first flight to a country where free enterprise capitalism was supposed to offer unlimited economic opportunities to the talented and the enterprising. The evidence is in the form of a sharp fall in the number of applicants for H-1B visas in 2009.

H-1B visa holders can be "temporarily" hired — usually for three years, extendable for another three years — by US employers provided they are in "specialty occupations". The US Immigration & Nationality Act specifies a "speciality occupation" as one that requires theoretical and practical application of a body of highly specialised knowledge in a field of human endeavour, including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business, theology and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum qualification.

The bill defines “hire” as an employer permitting a new employee to commence a period of employment; that is, the introduction of a new employee to the employer’s US workforce. Further, the bill proposes that employers be prohibited from hiring H-1B visa holders unless at least half its total employee strength comprises US citizens. "Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers", says Dick Durbin, a Senator belonging to the Democratic Party from Illinois, who is also the Assistant Senate Majority Leader and one of the two sponsors of the bill.

Drop in Applicants

This year, there has been a sudden drop in the number of people applying for H-1B visas even as those opposed to outsourcing of American jobs have become increasingly aggressive. Notable among them is Lou Dobbs, conservative television anchor of CNN. For years now, he has frequently highlighted and condemned "offshoring" of jobs. He has persisted in his campaign despite being accused of inciting xenophobia, besides mixing reportage with personal opinion and facts with advocacy. He has been described as a "raving protectionist", a "ratings hound" and as a person with an "intellectual midlife crisis".

Uproar in Indian IT Space

The new law has created an uproar in Indian IT space, as professionals from the country form the majority of people going to the US on H1-B visa to work in IT-related functions at banking and financial services firms. The financial services firms are the main recipients of the stimulus packages in the US and would be therefore subjected to various restrictions in hiring H1-B visa holders.

An H-1B non-immigrant is a foreign national who comes to the United States temporarily to work in a specialty occupation. A specialty occupation position is one that generally requires a bachelor’s or higher degree and specialised knowledge. The US businesses use the H1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialised fields, such as scientists, engineers, or computer programmers.

Under EAWA, any company that has received covered funding and seeks to hire H1B workers is considered to be an “H-1B dependent employer” and such employers would now required to make additional attestations to the US Department of Labour, while filing a Labor Condition Application (LCA).

The most-commonly voiced criticisms of the H-1B policy over the years has been that it replaces American workers, depresses salaries and is a form of subsidy to corporate bodies. It is claimed that the objectives of the policy are subverted by companies engaging foreign workers through contractors and by designating them as consultants. Some critics in the US have gone to the extent of describing H1-B visa holders as "indentured servants" or "slaves" because of their dependence on their employers.