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US move to end H-1B extensions may hit 400,000 Indians: report

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03 January 2018

The US administration is considering major changes in H-1B work visa programme that could adversely affect Indian information technology firms and tens of thousands of Indians working in the US on H-1B visas.

The new regulations being considered by the Department of Homeland Security propose not to extend existing H-1B visas, could affect as many as 400,000 Indians who are currently in the United States on H-1B visa.

The proposed US Bill - Protect and Grow American Jobs - also puts "onerous conditions" and places "unprecedented obligations" on both Indian IT companies and clients using H-1B visas, according to software body Nasscom.

Nasscom said it has flagged its concerns around visa-related issues in the US with the Senators, Congressmen and the administration, and will engage further in a dialogue over the next few weeks over the proposed legislation.

Reports say, under the new bill, DHS is considering new regulations that ''potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending.''

The American Competitiveness in the Twenty-First Century Act, passed in 2000, allows the DHS to grant H-1B visa holders extensions of one-year and three-year increments.

Anyone whose I-140 Immigrant Petition for Alien Worker form has been approved and has applied for adjustment of status gets a three-year extension under the legislation. Section 104 of the act states: "The US ''Attorney General may grant an extension of such non-immigrant status until the alien's application for adjustment of status has been processed and a decision made thereon.''

Section 105 of the law allows one-year extensions to those who have filed for Labor Certifications more than 365 days before their six-year H-1B visa term. It states: ''The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien's lawful permanent residence.''

Reports also said the ''administration is specifically looking at whether it can reinterpret the 'may grant' language'' of the Act to stop the extensions.

Online portal American Bazaar quoting Washington-area immigration attorney Johnson Myalil reported that this would make the three-year extensions easier to get rid of than the one-year ones.

''Right now [officials are] interpreting 'may grant' an extension as 'shall' grant,'' he said. ''If they decide to eliminate this particular type of extension, they can say that it is the discretion of the Attorney General.''

Myalil, a partner at the Hitech Immigration Law, based in Reston, VA, said that regulatory changes are likely required to eliminate the one-year extensions since the law specifies that the ''Attorney General shall extend the stay'' of the H-1B visa holders.

Most Indians on H-1B have to wait at least 10 years to get their green card because of a limit on the number of immigrants allowed from each country. Because of the sheer number of Indians applying for green cards - 70 per cent of H-1B visas are granted to Indian nationals - and since a majority of them apply for permanent residency, Indians have to wait longer.

Each year, the United States Citizenship and Immigration Services grants roughly 85,000 H-1B visas. The H-1B visas are issued for up to six years after which the visa holders who have applied for green cards, routinely seek extensions under the American Competitiveness Ac

According to USCIS, since the beginning of the 2007 fiscal year, nearly 2.2 million Indians applied for H-1B visas. The total number of applications received during the period was 3.4 million.

An analysis of USCIS data indicates that between 300,000 to 400,000 may be on H-1B extensions. And if the administration acts on the latest proposal, it's a cause for worry for these people.

''If the administration is going to eliminate both extensions, the Indian IT workers will have to either change the status, or go back to India,'' Myalil said.

In his inaugural State of the Union, President Donald Trump called for a ''merit-based'' immigration system. In April, Trump signed the ''Buy American and Hire American'' executive order directing federal agencies to come up with new rules and issue guidance to overhaul the immigration system, in order to protect the jobs of American workers and to prevent fraud or misuse of the visa program.

Under the Trump administration, H-1B petitions are now subjected to more intense scrutiny and applicants are facing costly and time-consuming challenges, reports say.

The administration has also signalled its intention to end issuing work permits to spouses of H-1B visa holders.





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