US proposal on business visas for H-1B speciality jobs could affect hundreds of Indians

The State Department on Wednesday proposed to not issue temporary business visas to skilled foreign workers for H-1B speciality occupations in the United States, PTI reported. The decision, which was made public less than two weeks before the presidential election, could disproportionately affect hundreds of Indians in the tech industry.

The Donald Trump administration’s decision also came in the wake of mass unemployment triggered by the coronavirus pandemic.

If the proposal is finalised, it will eliminate any misconception that the “B-1 in lieu of H policy” provides an alternative avenue for foreign professionals to enter the US for skilled labour – which allows and potentially encourages workers and employers to circumvent the restrictions and requirements relating to the “H” non-immigrant classification established by the Congress to protect American workers, according to the State Department.

Many Indian companies send their IT professionals on B-1 visas for a short stay to complete jobs on-site in the US.

The State Department also pointed out that the Attorney General of California had announced a $800,000 settlement against tech major Infosys in December 2019. Around 500 Infosys employees were working in the state on company-sponsored B-1 visas rather than H-1B visas between 2006 and 2017.

“The proposed changes and the resulting transparency would reduce the impact of foreign labour on the US workforce of aliens performing activities in a speciality occupation without the procedural protections attendant to the H-1B classification.”

— US State Department

In Wednesday’s notification, the State Department said US architecture firms seeking protection from rising labour costs in the country might believe they could lay off American architects and contracts, to get the same services provided by a foreign company. It detailed this further, saying if a foreign firm sought H-1B visas for its architects, it would be required to pay the prevailing wage for architects in the area of intended employment in the US, presumably the same money American architects had been pain. It’d also be required to meet other requirements enacted by the Congress to protect US workers.

The State Department said foreign architects could ostensibly seek B-1 visas and travel to the country to fill a temporary need for architecture services. If the employees retained a residence in the foreign country and continued to receive a salary, perhaps significantly lower than what is customary for US architects, they can be sent to the US.

However, the department added that the potential outcome of this is harmful to American workers and contrary to the policies of the Trump administration. The State Department also said the application process for a B-1 visa does not include similar procedural requirements to protect the US workers like that of H-1B visas. The fees for the B-1 visas are far less than that of H-1B visas, it said.

“If the architects who intended to perform skilled labour were ‘of distinguished merit and ability… seeking to perform [temporary architectural services] of an exceptional nature requiring such merit and ability, one might argue the current regulatory language suggests this type of labour is a permissible basis for B-1 non-immigrant visa issuance.”

— US State Department

On October 6, the Trump administration had announced significant changes to the H-1B visa programme for high-skilled workers. It narrowed the eligibility criteria for applicants and raised the wages American companies would have to pay to hire foreign workers. The changes introduced by the Departments of Labor and Homeland Security, which take effect in 60 days, would also shorten the length of visas for certain contract workers. The government said the rules would help cushion the economic fallout of the coronavirus pandemic.

On October 19, several individuals and organisations, including the United States Chambers of Commerce and the National Association of Manufacturers filed a lawsuit against the federal government’s rules. Those who have filed the lawsuit also include the University of Michigan, Bard College, Scripps College, Dentists for America, Physicians for American Healthcare and Hodges Bonded Warehouse.

President Donald Trump in June banned H-1B workers and some other visa holders from entering the US through the end of the year, citing the economic crisis caused by the pandemic. A federal judge in San Francisco had blocked Trump from enforcing a temporary ban on a large number of work permits on October 1.

US proposal on business visas for H-1B speciality jobs could affect hundreds of Indians