Trump's plan: H-1B visa only for most-skilled, highest-paid foreign workers

The Donald Trump government has proposed major changes to the H1B application process, including a rule requiring companies to electronically register their petitions in advance. This is aimed at awarding the popular American work visa to the most-skilled and highest-paid foreign workers.

The H1B visa, popular among Indian information technology companies and professionals, is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries such as India and China.

Under the proposed merit-based rule, companies employing foreign workers on the H1B visa — under the Congressionally-mandated annual caps — would first have to electronically register with the US Citizenship and Immigration Services (USCIS) during a designated registration period. The H1B visa has a numerical limit cap of 65,000 visas each fiscal year as mandated by the Congress. The first 20,000 petitions filed on behalf of beneficiaries with a US master's degree or higher are exempt from the cap.

Under the new rule, the USCIS will also reverse the order by which it selects H1B petitions under the H1B cap and the advanced degree exemption. This is likely to increase the number of foreign workers with a master’s or higher degree from a US institution of higher education to be selected for an H1B cap number. As such, the proposed rule will introduce a more meritorious selection of beneficiaries, the Department of Homeland Security (DHS) said in a statement.

“By increasing the chances of H1Bs with advanced degrees from US institutions, the proposed H1B pre-registration rule will shut out Indian H1Bs with good bachelor’s degrees from Indian universities who could potentially contribute to the US,” Cyrus Mehta, immigration law expert and owner of New York-based law firm Cyrus D Mehta & Partners, tweeted. 

Kris Lakshmikanth, founder and managing director of Head Hunters India, however, said, “Indian and Chinese nationals are the two nations who go to the US for higher studies. Today, Indians constitute 60 per cent of H1B visas. That can go up to 70 per cent now with the new regulations as most of the Indians pursue higher education in science in the US, and these are the people who are required by the US companies. But, if you are working in India, then the possibility of getting the H1B visa will come down.”

The DHS said public comments on the proposed rule may be submitted starting December 3, when the proposed rule publishes in the Federal Register, and must be received on or before January 2.

“At present, in years when the H1B cap and the advanced degree exemption are both reached within the first five days that H1B cap petitions may be filed, the advanced degree exemption is selected prior to the H1B cap. The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H1B cap first,” the DHS said. Once a sufficient number of registrations or petitions have been selected for the H1B cap, the USCIS would then select registrations or petitions towards the advanced degree exemption.

“This proposed change would increase the chances that beneficiaries with a master's or higher degree from a US institution of higher education would be selected under the H1B cap and that H1B visas would be awarded to the most-skilled and highest-paid beneficiaries," it said.

The proposed process would result in an estimated increase of up to 16 per cent (or 5,340 workers) in the number of selected H1B beneficiaries with a master's degree or higher from a US institution of higher education, the DHS said. 

The USCIS said it expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H1B cap petition process for the agency.

The proposed rule would help alleviate massive administrative burdens on the USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process, it said.

"This would help reduce wait times for cap selection notifications. The proposed rule also limits the filing of H1B cap-subject petitions to the beneficiary named on the original selected registration, which would protect the integrity of this registration system," it added. President Donald Trump, who insists on the 'Buy American and Hire American' strategy, last year instructed the DHS to propose new rules and issue new guidance to supersede or revise previous rules to protect the interests of US workers.

He had directed DHS and other agencies to "suggest reforms to help ensure that H1B visas are awarded to the most-skilled or highest-paid petition beneficiaries."

Proposed rules

• There will be a rule requiring companies to electronically register their petitions in advance

• Companies employing foreign workers on the H1B visa will have to register with the US Citizenship and Immigration Services

• USCIS will reverse the order by which it selects H1B petitions

• This is likely to increase the number of foreign workers with a master's or higher degree

• The process will result in an estimated increase of up to 16 per cent in beneficiaries with a master's degree or higher