Tougher US visa regime to hurt Indian IT firms

Proposed norms to necessitate greater disclosure of employee, client details, bring companies in conflict with privacy laws

The Indian IT industry is in for a tougher visa regime in its biggest market, the US. Firms such as Infosys, TCS and Wipro that send thousands of techies on short-term business assignments to the US will now have to disclose personal details of these employees and names of the American companies they are assigned to. That will potentially limit Indian IT companies’ flexibility to take quick staffing decisions besides putting the nitty-gritty of their US operations in public glare at a time when the political climate there is decidedly against outsourcing.

The US department of labour has proposed significant changes in the labour condition application (LCA) for visa petitions. Under the existing immigration law in the US, all employers are required to obtain LCA approval from the department of labour to file for H-1B and certain other short-term business visas. The LCA filed electronically is considered a procedural ‘rubber stamp’ in the H-1B visa application process.

The proposed changes would require employers to disclose end-clients’ names. More importantly, they will have to furnish personal information of employees, including name, date of birth, country of birth, salary and pending permanent residency applications. Most companies plan their visa programme much before identifying the prospective employees to be deputed.

EMPLOYERS MUST...

• Disclose personal info about each applicant and name of the client to be served 
• Declare the foreign worker will be paid at least the wages people in the same occupation in the US get 
• Attest that employing the H-1B worker will not adversely affect the working conditions for others employed in the area

COMPANIES’ WORRIES

• Releasing personal info to the public may violate state laws and company policies regarding the disclosure of pvt employee data 
• Firms won’t get a jump-start on the H-1B filing process as they must identify the beneficiaries first and then plan the visa petition process 
• Ability to quickly hire and move employees to new work sites would be hit 
• Clients may not like their names to be disclosed

“It would require a lot of planning in terms of identifying the beneficiaries so that they can file the LCA and then petition for the visa,” said Mumbai-based immigration lawyer Poorvi Chothani.

Since all such information is proposed to be kept available in a public access file, there could be leakage of confidential information to the public. That would affect companies as most of them sign non-disclosure agreements with end-clients.

Industry body Nasscom said it was in the process of evaluating the proposals and would submit comments to the US authorities before the due date. “We have nothing to hide. We want to see that it does not become a big operational bottleneck and affect the efficiencies of our industry,” said Ameet Nivasarkar, vice-president, Nasscom. “Of course, confidentiality and privacy concerns need to be addressed,” he added.

“The labour department believes it is helping US workers and penalising employers who hire H-1B workers,” said Sheela Murthy, president and founder of Murthy Law Firm, an immigration law specialist in the US.

The proposed changes are on review till September 7, by which various stakeholders must offer feedback. Given the anti-outsourcing sentiment brewing in the US in an election year, industry observers feel there are chances of some of the changes getting implemented.