New H1-B rule puts American employers in limbo: Top attorney

indica News Bureau –


The new H1-B rule proposed by the Trump administration – a worrying development for Indians who typically garner more than 60 per cent of these visas – is likely unlawful and would be more costly for the employers, a top immigration attorney has said.

According to Vic Goel, Managing Partner at Goel & Anderson, the new regulation has already created mass confusion and may result in increased costs for employers.

In an interview given to Forbes, Goel said that employers are now in limbo.

They “will likely incur increased time and cost by having to plan for the possibility that the regulation will be implemented this year, as well as the possibility that it will be delayed to next year,” Goel was quoted as saying.

In a fresh administrative measure, the Department of Homeland Security (DHS) has proposed a rule that would seek petitioners to file for H-1B cap-subject visas to first electronically register with US Citizenship and Immigration Services (USCIS).

The DHS proposal to introduce electronic registration for H-1B visa petitions for the filing season for the 2020 fiscal, which kicks off on April 1, 2019 along with a reverse selection process to include US master’s or advanced degree holders within the 65,000-cap will tighten movement for the Indian IT services sector.

USCIS would change the counting order when petitions are received in excess of the 65,000-limit and the 20,000 exemption from that limit for individuals with a master’s degree or higher from a US university.

Goel said that the law passed by Congress indicates clearly that H-1B petitions for individuals with a U.S. master’s degree or higher are not subject to the overall H-1B cap until after 20,000 exempted visas are issued.

“By flipping the counting order, the new regulation is at odds with what the law requires, whereas the current practice already complies with the law established by Congress,” Goel told Forbes.

According to the Indian IT industry’s apex body NASSCOM, the Indian IT services sector – a major beneficiary of the H-1B visas – sees this as a fresh concern, adding that it may lead to “uncertainties” and could put US jobs at risk.

Goel said another big change USCIS proposes is to require electronic pre-registration of H-1B petitions before they can be filed.

“USCIS believes that this change would result in time and cost savings for employers and USCIS alike, but I have some reservations,” he noted.

“This proposal and its timing could disadvantage small employers with fewer eligible employees and resources to track these last-minute changes,” Goel warned.

“I believe the sting of this regulation will negatively impact all employers, including small and large American firms,” the immigration attorney added.

According to media reports, the proposed DHS process would result in an estimated increase of up to 16 percent (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.

Goel lamented that rather than advocating for legislation that could address the shortfall in visas for highly-skilled foreign workers, “the Trump administration is instead behind a massive spike in denials of employment-based visa petitions”.

The latest DHS proposal has already been approved by the US Office of Management and Budget (OMB) unit of the US president’s executive office.

“The Trump administration has systematically built an invisible wall around the United States and put up a sign telling foreign-born scientists and engineers, ‘Go away, we’re closed’,” stressed Goel.


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