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Immigration Expert Says Change in H-1B Requires Congressional Action

In an executive order signed on Tuesday, Trump had directed the departments of labour, state, homeland security and justice to review the current laws governing the programme to suggest changes to prioritise the most skilled and highest paid positions.
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Donald Trump has ordered for overhaul of the H-1B visa programme, popular with Indian IT companies.
Donald Trump has ordered for overhaul of the H-1B visa programme, popular with Indian IT companies.

Washington: Making any change in the H-1B visa programme, popular with Indian technology professionals, would require legislative action by the US Congress, an immigration expert has said.

In an executive order signed on Tuesday, Trump had directed the departments of labour, state, homeland security and justice to review the current laws governing the programme to suggest changes to prioritise the most skilled and highest paid positions.

"However, any changes would require either Congressional action, changing statutory requirements, or regulations that would trigger President Trump's prior executive order ordering agencies to rescind two regulations for every new regulation proposed," said noted immigration expert Rebecca Bernhard, who is a partner at the international law firm Dorsey & Whitney.



Moreover, the current law and regulations of the H-1B program require that beneficiaries of H-1B visas hold at least a specialised bachelor's degree for the position offered and there are anti-fraud and training fees for employers to pay so that the government can maintain programs President Trump is calling for, she said.

Although President Trump's call for additional measures to combat fraud in this new executive order could be implemented more quickly, she said documented instances of fraud in the H-1B and other temporary visa programs are quite low.

"Most employers that utilise the H-1B program do so legitimately because they need the skills and talent of a particular worker, and those who don't can be rooted out by the current anti-fraud provisions," Bernhard said.

Contrary to recent rhetoric, she said H-1B visas do not generally act as a mechanism to replace American workers.

"Instead, US businesses use the H-1B to gain access to the sought-after skills of foreign professionals, many of whom graduate from US universities, to complement the US workforce," she added.

"In recent years, universities report that foreign students make up over 60 per cent of their STEM undergraduate and graduate degrees," Bernhard said.

She pointed out that the unemployment rate for occupations that use H-1B visas is very low as compared to the national unemployment rate.

"It is also a myth that US businesses seek H-1B workers in order to save money; the fees and costs associated with filing a successful petition are high enough that most employers use the H-1B because they cannot locate a qualified US worker to fill the position," Bernhard said.

Marina Whitman, professor at Michigan University, said where there is a genuine shortage of Americans to do the work, hiring foreign workers on H-1B visas add to overall efficiency in the US.

"But when they are used, as they sometimes are, to bring in foreign workers to replace American workers, who sometimes are forced to train their replacements who will receive lower wages, that is unfair," she said.

"Raising the wage floor at which H-1B visas are permitted, as Trump has proposed, is probably a good idea, if such visas are for truly 'highly-skilled' people," Whitman said.

Ann Lin, an associate professor at the Michigan University said, "One of the problems with the H-1B visa is that it was understood to be for short-term immediate disruptions in the market where suddenly we need labour."

"We're going to bring people in, but the job is going to be temporary and so they'll be able to leave again. But we're not using it like that," Lin said.



(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

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