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H-1B Visa Reforms May Happen By January, Move To Impact Indian IT Firms

The Trump administration has said it is planning to "revise" the definition of employment and specialty occupations under the H-1B visas by January, a move which will have an adverse impact on Indian IT companies in the U.S. and small and medium-sized contractual firms mostly owned by Indian Americans, writes Lalit K. Jha.

The H-1B visa, most sought-after among Indian IT professionals, is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise.

Tata Consultancy Services (TCS) is the only Indian company, among the top 10 firms, to get foreign labor certification for the H-1B visas for the fiscal year 2018, by receiving 20,755 such certifications, according to official data, in which Ernst & Young was ranked No 1.

London-headquartered Ernst & Young, a multinational professional services firm, has emerged as the top employer to have received the certification, the U.S. Department of Labor said.

In fact, Ernst & Young with 151,164 H-1B specialist occupation labor certifications accounted for the 12.4% of all foreign labor certification for the H-1B work visas for the fiscal year 2018 ending on Sept. 30, according to the latest annual report released by the Department of Labor, early October.

Ernst & Young is followed by Deloitte Consulting which received 69,869 H-1B specialty occupations labor condition approvals.

Indian American-owned Cognizant Technology Corp comes at number three with 47,732 specialty occupations labor condition approvals, the Department of Labor said in its latest annual report.

Cognizant is followed by HCL America (42,820), K Force Inc. (32,996), and Apple (26,833).

Qualcomm Technologies (20,723), Mphasis Corporation (16,671) and Capgemini America (13,517) are other companies in the top 10.

The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.

The Department of Homeland Security (DHS) said, Oct. 17, that the U.S. Citizenship and Immigration Services (USCIS) plans to come out with its new proposal by January, 2019.

The DHS said it was also proposing to remove from its regulations certain H-4 spouses of H-1B non-immigrants as a class of aliens eligible for employment authorization.

The move to end the rule could have an impact on more than 70,000 H-4 visas holders, who have work permits.

The H-4 visas are issued by the USCIS to immediate family members (spouse and children under 21 years of age) of the holders of H-1B visa.

The DHS said it will "propose to revise the definition of specialty occupation" to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program.

It will also "revise the definition" of employment and employer-employee relationship to "better protect" U.S. workers and wages, the DHS said.

Such a move, which is part of the Unified Fall Agenda of the Trump administration, will have a detrimental impact on the functioning of Indian IT companies in the U.S. and also small and medium-sized contractual companies in the IT sector, which are mostly owned by Indian Americans.

In addition, the DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders, the administration said.

The H1-B visa has an annual 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 U.S. master's degree or higher are exempt from the cap.

As an H-1B non-immigrant, the applicant may be admitted for a period of up to three years. The time period may be extended, but generally cannot go beyond a total of six years.

The DHS said it was also finalizing its interim regulation governing petitions filed on behalf of alien workers subject to the annual numerical limitations applicable to the H-1B non-immigrant classification.

This rule precludes an individual from filing duplicate petitions on behalf of the same alien temporary worker.

The rule also makes accommodations for petitioners to create a more efficient filing process for H-1B petitions subject to the annual numerical limitation.

Observing that the demand for H-1B visas has often exceeded the numerical limitation, the DHS said it was proposing to establish an electronic registration program for such applications.

This will allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions, it said.

The Trump administration is reviewing the H-1B visa policy that it thinks is being misused by companies to replace American workers.

The administration has said publicly and also in its court filing that it wants to revoke work permits to H4 visa holders, a significant majority of whom are Indian Americans and women.

The move will have a major impact on Indian women as they are the major beneficiary of the Obama-era rule.

The DHS in its Unified Fall Agenda said it believed that abandoning the current practice of granting employment authorization to H-4 dependent spouses would benefit some U.S. workers.

It said the proposed rule would no longer allow H-4 workers to enter the labor market early.

The DHS, which has already delayed three times this year issuing of the necessary notification, said it was on its way to remove H-4 dependent spouses from getting work authorization.

As of Dec. 25, 2017, U.S. Citizenship and Immigration Services had approved 126,853 applications for employment authorization for H-4 visa holders.

These count all approvals since May 2015 when the rule was implemented. This number includes 90,946 initial approvals, 35,219 renewals, and 688 replacements for lost cards.

Nearly three out of every four H-1B visa holders as of Oct. 5 are Indian citizens, an official U.S. report has said.

According to the U.S. Citizenship and Immigration Services (USCIS), there were as many as 419,637 foreign nationals working in the US on H-1B visas as on Oct. 5.

Of these, 309,986 are Indians, the USCIS said in its report 'H-1B Petitions by Gender and Country of Birth Fiscal Year 2018.'

The report reveals a massive gender disparity only one out of every four H-1B visa holders is female. Of the 419,637 H-1B visa holders, 106,096 (or 25.3%) are females as against 311,997 (or 74.3% males), it said.

Gender disparity is wider among Indians.

Of the 309,986 Indians on H-1B visas in the U.S. this October, only 63,220 or 20.4% are females while nearly 245,517 Indians on H-1B visas or 80% (79.2% to be precise) are males. As many as 1,249 Indians on H-1B visas have been characterized in the category of missing/others.

Indians, who account for 73.9% of the total H-1B visa holders in the U.S., are followed by a distant Chinese with 47,172 on H-1B visas, accounting for 11.2% of the total foreign nationals on this work visas.

But there is not much gender disparity among the Chinese on H-1B visas. According to the report, 21,342 or 45.2% are females and 25,718 or 54.5% are males.

After India and China, Canada and South Korea are the only two countries which account for a little over one percent (1.1% to be precise) each on H-1B visas.

All other countries constitute less than one percent of the H-1B visas as of Oct. 5.

The Philippines is the only country in top 10 H-1B visa holders wherein there are more females (1,712 or 52.7%) on H-1B visas than males (1,519 or 46.7%) on H-1B visas. As of Oct. 5, as many as 3,250 professionals from the Philippines were on H-1B visas.

The H-1B gender report was released days after the Trump administration came out with its unified fall agenda.

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