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Getting H-1B visa may get even more tougher

In more bad news for Indian professionals looking to work in the US, the Department of Homeland Security (DHS) is considering a proposal that will make getting an H-1B visa even more tough. It is looking to further impose stringent restrictions on H-1B petitioners’ selection process.

This follows news that H-1B visa holders’ spouses may no longer be allowed to work in the US. International immigration firm Fragomen’s latest update, on its website, said the DHS has indicated that it may revive a 2011 proposed rule that would require H-1B petitioners to pre-register for the H-1B cap lottery and to submit cap petitions only after they have won cap numbers.

“DHS also plans to propose a priority system for allocation of H-1B cap numbers, which would give priority to the most highly-paid and highly skilled, consistent with President Trump’s ‘Buy American, Hire American’ executive order,” it said in its update. DHS announced these proposals in an update to its semi-annual regulatory agenda. It may also consider changes to H-1B wages.

Scott J Fitzgerald, partner in Fragomen Worldwide, said any proposed changes to the H-1B cap lottery system are not scheduled to be announced till February 2018. “If such changes are announced under the standard process that allows for ‘Notice and Comment’, which typically takes several months, then the changes won’t go into effect in time to cover the upcoming cap, under which filing begins in April 2018,” he said.

Fitzgerald said if these provisions are introduced as an emergency rule (which waives the ‘Notice and Comment’ requirement), then it could be covered in the next cap filing season. “This would be a real disaster for many companies as they either may not need to file cases already prepared (if there is a new “pre-registration” system), or they may not want to file many such cases, as many would be very unlikely to be selected under the new selection system,” he added.

Indian IT companies are the largest users of H-1B visas and non-immigrant visas that allow US firms to temporarily employ foreign workers. The US Citizenship & Immigration Services (USCIS) triggers a lottery system to select the petitions needed to meet the caps of 65,000 for the general category and 20,000 for the advanced degree exemption.

Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School, said the USCIS had done a lot already in the past few months to make it harder to qualify for H-1B visas. “The percentage of H-1B cases receiving a request for evidence has doubled to 41%. The USCIS is questioning whether some computer positions really require a bachelor’s degree,” he said.

The Trump administration claims that its immigration overhaul targeting H-1B visa holders is to deter fraud and abuse. This, experts believe, will restrict free movement of talent due to fiery protectionist policies.