The Department of Homeland Security is considering new regulations that would abolish H-1B visa extensions for those waiting for their permanent residency to be approved. This change could cause over 500,000 H-1B visa holders to lose their jobs and be forced to self deport. Chudnovsky Law notes that Indian and Chinese nationals would bear the overwhelming majority of the effect since they account for over 82% of H-1B issuance.
The new proposed regulations are part of President Trump’s “Buy American, Hire American” initiative and are currently being drafted in memos between DHS department heads. The administration is evaluating whether they can reinterpret language in existing regulations to stop giving extensions.
“The idea is to create a sort of ‘self deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans,” according to a source briefed by DHS officials.
Proposal abolishes extensions during Green Card processing
Currently H-1B workers are allowed one 3 year extension of their initial H1B visa period of 3 years. If an H-1B worker has a pending Green Card application at the end of this 6 year period, current regulations allow almost unlimited extensions until their Green Card processing is completed.
For Green Card applicants from India and China, there are enormous waiting queues for Green Card processing. This causes hundreds of thousands of workers from these countries to be stuck in “H-1B limbo” for up to 12 years waiting for their Green Cards to be processed. If DHS enacts the proposed changes, H-1B holders that have applied for Green Cards would lose their jobs and be forced to leave the US at the end of their sixth year.
The proposal is part of a wider effort of the Trump administration to remake the rules surrounding H-1B visa allocations. The administration has also announced that they intend to eliminate the ability of H-1B spouses to work in the US which would add further economic pressure on H-1B families.
Many key tech luminaries are immigrants
One debate centers around the fact that the H-1B visa was intended to address a shortage of skilled workers, not become a path to citizenship. However, many skilled foreign workers have entered via H-1B visas before they became permanent residents and ultimately US citizens. H-1B supporters are quick to point out that many of America’s iconic leaders have been immigrants.
A long list of US tech luminaries are immigrants including names like Tesla’s Elon Musk, Microsoft’s Satya Nadella and Google’s Sergey Brin and Sundar Pichai. Tech immigrants have created tremendous value for the US tech industry and stock market. In fact, a Center for American Entrepreneurship study found that 43% of the Fortune 500 companies were founded by immigrants or their first generation children.
Skilled tech worker shortage drives H-1B popularity
US administrations have periodically tweaked H-1B rules to make it more difficult and expensive to hire foreign workers. Yet, H-1B visas continue to be immensely popular and visa allocations are used up within a few days of their annual release every April. The reason is simple: the United States does not have enough STEM workers with the skills the tech industry needs.
Tech industry is poised to mobilize against the proposal
Many are hoping the current Trump administration proposal is not implemented. It is still being debated inside DHS and the tech industry appears poised to mobilize against it. Among the arguments for the status quo are:
- If the US ejects huge numbers of tech workers, other countries will greatly benefit as work will migrate to where the workers are. The chances of the next Apple, Uber or Google being developed outside the US would increase.
- Foreign workers pay into the US tax system and contribute significantly to the US economy beyond their direct contribution of valuable skills.
- Exacerbating the tech talent shortage would accelerate companies being forced to move tech centers and development work outside the US.
Read More H-1B News
1/8/18 Update: Read our legal analysis of the H1B extension rules and likelihood that DHS can abolish H1B extensions without approval from Congress.
Read the letter to USCIS from 60 of the world’s largest tech companies urging the Trump administration to drop it’s dubious plan to halt H4 work visas for H1B worker’s spouses.
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Originally published at TopLawyer.law.