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New H-1B guidelines: Entry-level programmer not eligible

Software industry body Nasscom said that the clarification is expected to have “little impact” on Indian technology companies.

By: ENS Economic Bureau | New Delhi |
April 5, 2017 2:40:02 am

With the application process for the H-1B visas to be issued for fiscal 2017-18 beginning from Monday, the new guidelines issued by the US administration such as increased form fees, higher scrutiny to detect potential abuse of the programme, and removal of certain categories of professionals from the H-1B programme point towards a stricter regime against the earlier proposals in the US , which were dismissed by various Indian IT firms and professionals.

In the latest development, the US Citizens and Immigration Services (USCIS), which is the agency overlooking immigration into the US, issued a memorandum suggesting that companies applying for visas under the H-1B programme must provide “evidence to establish that the particular position is one in a specialty occupation”. The agency also ruled that an entry level computer programmer position would not generally qualify as a position in a “specialty occupation”. The clarification on what constitutes a specialty occupation superseding and rescinding its previous guidelines of December 22, 2000 was issued by the USCIS through a new policy memorandum on March 31.

However, software industry body Nasscom said that the clarification is expected to have “little impact” on Indian technology companies. “The clarifying guidance should have little impact on Nasscom members as this has been the adjudicatory practice for years and also as several of our member executives have noted recently, they are applying for visas for higher level professionals this year,” Nasscom said.

Late Monday, the USCIS also said it would step up its scrutiny to detect “fraud and abuse” of the visa programme, by taking a more targeted approach when making site visits across the country to check with H-1B petitioners and their worksites, thus making Indian companies, which have high dependence on the visa, more susceptible to investigation. The USICS has been conducting random site visits since 2009 to ensure compliance with the visa norms, but said it was stepping up its scrutiny to “to identify employers who are abusing the system”. “Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers,” it said.

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The US Department of Justice (DoJ) also issued a warning to companies not to discriminate against American workers by “misusing” H-1B visas. “The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against US workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division, according to a statement by the US DoJ.

“US workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

Earlier, the USCIS suspended premium processing of H-1B visa, under which companies could jump the visa application queue by paying a higher fee. On Monday, the application process for the H-1B programme also started for financial year 2017-18. The US financial year would begin from October 1. The administration has also tweaked certain rules to disincentivise use of this programme, through which professionals from outside the country were brought in. The filing fee for the form required to be filled by a non-immigrant worker was increased to $460 compared with $325.

Furthermore, as per the latest rules, petitioners no longer have 14 days to correct a dishonored payment. If any fee payments are not honoured by the applicant’s bank or financial institution, the USCIS will reject the entire H-1B petition without the option for the petitioner to correct it.

The uncertainty on account of tightening of US visa norms is expected to be one of the major challenges for the Indian IT firms in the ongoing financial year, according to Infosys co-founder Kris Gopalakrishnan, who also suggested that the industry needs to revisit its models for operations outside India. “The challenge mainly arises because of uncertainties on the visa front (emanating from US),” Gopalakrishnan said, as quoted by PTI. “This is a trade issue. We have certain strengths which we need to leverage. Services is our strength. Having said that, we need to look at new models, we need to look at how the industry can transform. I see this happening. Lot more US companies are setting up IT operations in India. So, the companies are shifting to India,” he said.

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First published on: 05-04-2017 at 02:40:02 am

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