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H-1B visas new rules (Easier For US Degree Holders) All that has changed, how it may impact Indian IT companies (Trump’s Proposal Hard For India)

H-1B Visa Made Easier For US Degree Holders; Trump’s New Proposal Makes It Hard For India
Under the proposed changes, US Degree holders will get 16% more chance in getting H-1B visa.
President Trump has made few important proposals to the existing process of H-1B visa allocation in the US. Under the new proposals, a foreigner with US Degree will have more chance to get an H-1B visa, which means that US educational system can also get a boost now as more and more foreigners will now opt for a US degree.

At the same time, this can be a bad decision for Indian IT firms, and candidates with higher degrees and higher income will be selected first. No doubt this will benefit tech firms in the US, but Indian IT firms can suffer.

US Degree Will Have More Importance 

Under the current ‘lottery’ system for granting H-1B visa, a cap of 65,000 visas exist in a year. However, a smaller cap of 20,000 H-1B visas exists for those who have a US degree.

Currently, US degree holders are exempted from the cap of 65,000 visas, and thus, chances are less for them, because they are fighting the 20,000 cap.

But from now on, the process will be reversed. 

Now, both US and non-US degree holders will compete in the same 65,000 visa cap, and if the US degree holder misses out, he/she may try again for the 20,000 H-1B visa cap.

This means, that a foreigner with a US degree will now have 16% more chance to get an H-1B visa, compared to the current process.

In a statement, the Department of Homeland Security (DHS) said, “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 H-1B cap number. As such the proposed rule will introduce a more meritorious selection of beneficiaries,”

The proposals have been sent to the US Citizenship and Immigration Services (USCIS), which authorizes H-1B visa allocation process.

H-1B visas new rules (Easier For US Degree Holders) All that has changed, how it may impact Indian IT companies (Trump’s Proposal Hard For India)

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H-1B visas new rules: All that has changed, not changed and how it may impact Indian IT companies

The US government has proposed major changes to the H-1B application process. These rules are open for comments starting today, December 3. Here's all that the new US Citizenship and Immigration Services (USCIS) proposed rules will change, not change as well as their impact on Indian IT companies.

​1. Whats's new: Sponsoring employers to register online prior to submission of H-1B applications

The Department of Homeland Security (DHS) announced today a notice of proposed rule making that would require petitioners seeking to file H-1B petitions to first electronically register with USCIS during a designated registration period. However, this online registration requirement may be deferred if it cannot be.

​2. What's new: Order of the regular lottery and Master's cap lottery swapped

The H1-B 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 proposed rule, the USCIS plans to reverse the order by which it selects H-1B petitions under the H-1B 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 H-1B cap number. Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap. 

3. What's new: Full H-1B applications to be filed only if selected in lottery.

4. What's new: Increase chances of those with Master's degree to get H-1B visa

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 H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries. The proposed process is expected to result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a US institution of higher education.

5. What remains same: The annual quota for initial H-1B visa allotments remain unchanged at 85,000.

6. Impact: Electronic registration to reduce overall costs for petitioners

USCIS expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS. The proposed rule would help alleviate massive administrative burdens on 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.

7. ​Impact: reduce wait times for cap selection

This would help reduce wait times for cap selection notifications. The proposed rule also limits the filing of H-1B cap-subject petitions to the beneficiary named on the original selected registration, which would protect the integrity of this registration system.

8. Impact: Make it tougher for mid-sized IT companies to get H-1B visas

The reversal in lottery order is likely to impact mid-sized Indian IT companies. As most of its employees do not have advanced degrees from the US.

9. ​Impact: Nasscom raises concerns over US govt latest proposal on H1-B visas

"There is not much time between now and when the next H-1B lottery season opens in April 2019. Companies have already begun assessing their needs and planning their submissions for next year, so we are concerned about the uncertainties that could arise as the government seeks to implement another major change in the H-1B process during that timeframe," Nasscom said in a statement.

10. ​Impact: This action could put US jobs at risk

The Nasscom statemwnt added, "To the extent US policy makes it more difficult and costlier for global IT service companies to provide their expertise in the US, it will weaken the US companies that depend on them to help fill their skills gaps. Contrary to what is intended, this action could put US jobs at risk and create pressure to send more IT work abroad, rather than performing it in the US." 

11. Impact: New waiting list likely to be created

USCIS may create a waiting list so that additional cases could be filed if the quota is not reached, say due to petition rejections or withdrawals.

USCIS has asked the public to comment on these proposals starting from December 3rd and will be allocated a month for the same. If approved, these changes get will come into effect for 2020, whose lottery prices will start from April 2019.

US Will Get More Leeway In Rejecting Candidates?

Besides this major change in the lottery process, US President Trump has also suggested that candidates applying for H-1B visa should now apply electronically, in advance. As per analysts, this move will help USCIS to screen candidates based on their educational degrees, qualifications, salaries etc, and make the rejection process easier.

This electronic process will no doubt make the process of applying H-1B easier as now, anyone can apply via a portal (if approved). But this will give more leeway and more power to the USCIS in deciding who will work in the US. 

David H Nachman, managing attorney at NPZ Law Group said, “The implementation of the pre-registration program along with the new information requested in Form ETA 9035 [Labour Certification form], which came into effect from November 19, has the potential for abuse because the ‘fair and random H-1B lottery’ may be relegated to a closely guided and criteria-driven process,” 

Rejection of H-1B visa applications has already increased by 42%, and once these two rules come into force, it is expected that the rejections will only increase, especially for non-US degree holders, applying for a work visa in the US.

We will keep you updated, as more details come in.
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