H-1B visa a political challenge for victor

The H-1B visa rules following the outcome of the US presidential elections will determine the future course of action for skilled professionals seeking to work in the US. The Donald Trump administration’s efforts to tighten the visa guidelines had intensified in recent months, especially after the pandemic-induced job losses affected over 40 million Americans.

But, while Trump’s anti-immigrant stand is well-documented with his desire to keep “American jobs for American workers”, will H-1B visa norms be relaxed with a change in the regime?

US-based law firms said it was usually easier to introduce restrictions on immigrants than relax controls, and even a new president will be hard-pressed to be more generous to the H-1B programme, especially amid the pandemic that has left the American economy battered.

The H-1B programme has been under pressure for a long time and even faced challenges during the Obama administration when Joe Biden was vice-president.

“The immediate impact of a Biden victory on immigration may be felt more in administration than in policy,” said Mark Davies, global chairman at Davies and Associates Llc, an immigration law firm based in New York. Davies said that Trump’s government had been operating the US visa processing system at suboptimal efficiency, slowing the application process down, thereby reducing the number of visas issued. Biden could be expected to reverse this. “The president is limited in what he can do alone on immigration policy and would need to work with Congress to reform the system. Presidents can introduce executive orders bypassing the Congress, but these are usually short-term measures and are an unviable way to govern in the long term,” he added.

On its part, the Indian government has sought predictability in the US visa regime after a number of changes were recently incorporated in the rules governing the issuance of the H-1B visas, which are popular with Indian IT software professionals.

“The people-to-people relationship is a special foundation” of the US-India relationship, Indian foreign ministry spokesman Anurag Srivastava told reporters at a regular foreign office briefing last week.

“In our engagements, we have emphasized that this mutually beneficial partnership must be nurtured. We are engaged with the US government for increasing predictability in the visa regime.” Srivastava added that New Delhi had also stressed on the need to minimize the inconvenience faced by those in the US and those who needed to travel to the US for bonafide reasons. Earlier this year, Trump had issued an executive order suspending H-1B and a range of other visas in response to the pandemic. The order is set to expire at the end of the year, and it is unlikely that Biden would renew it if he is elected.

Nevertheless, Biden’s immigration policy must take into account the looming unemployment crisis. Analysts agreed that H-1B visa, with its perceived adverse impact on American jobs, will remain politically challenging whoever wins the election. “Overall, I see a more relaxed visa regime under Biden-Harris, and definitely one that won’t tighten further. Biden is pro-immigration, and recognizes that immigrants bring economic, cultural and social value, which may also translate into more tech workers there, and even more of their family members,” said Prasanto K. Roy, a public policy consultant.

Every year, the US administration issues 85,000 H-1B work permits, of which 65,000 are for people with specialty occupations, while the remaining are reserved for foreign workers who earned a masters or higher university degree in the US. Every year, Indians and Indian companies corner a large number of H-1B work permits. According to the US Citizenship and Immigration Services, the department has received about 250,000 H-1B work visa applications, with Indians accounting for 184,000, or 67%, of the total work visas. Both Trump and Biden had been trying to woo the four-million-strong Indian American community ahead of the polls. In his campaign speeches, Biden has referred to the issue. “We also believe America is a land of opportunity. But it’s likely you and your family have been caught in the middle of President Trump’s crackdown of legal immigration and pathways to permanent residency and citizenship and his decisions on the H-1B visa programme. And his dangerous rhetoric about immigrants has empowered white supremacists and even fuelled hate crimes against Indian Americans,” he said.