H1B Visa Termination: A critical analysis of the change in the visa policy of the United States

Ashok Mukerji, former permanent representative of India in the United Nations states that the immediate provocation for the new measure is the negative impact of the Covid-19 pandemic on employment in the United States. Between February and April 2020, the United States recorded more than 20 million American citizens losing their jobs in key industries where employers had sought H1B and L visa holders to fill vacancies.

New Delhi: The United States has five well-defined categories for issuing immigrant visas for obtaining citizenship, such as naturalization, permanent residency (Green Card), family, refugees, and adoption. It regulates the entry of short-term non-immigrants to work in the economic, educational and cultural sectors in the United States through the grant of H1B, H2B, J and L visas. It is this non-immigrant category that the Trump Administration has banned from entry into the United States from 24 June 2020 till 31 December 2020, with a few specific exceptions.

The H1B visa is given under the 1990 U.S. Immigration Act to employers in the United States to temporarily hire foreign workers with university degrees in specialized occupations. Normally valid for a period of 3 to 6 years, the holder does not have to leave the United States after the position he/she was employed for ends. The H2B visa is given for non-farm workers from 81 designated countries (excluding India) without any specific educational or particular requirement to enter the United States for 6 months to a year for temporary work sponsored by a U.S. employer. J visas are issued to educational and cultural persons to foster global understanding and requires their holders to return to their country of origin on completion of their program. L visas are given for executives who work for companies located outside the United States who are sent for temporary or specialized work in the United States by their companies.

President Trump’s decision comes on the heels of the 22 April 2020 measure taken by his Trump Administration “suspending entry of immigrants who present a risk to the U.S. labour market” following the Covid-19 outbreak for 60 days. The April notification had not included the H1B/H2B/L categories.

The ban on entry of non-immigrants into the United States will be in force until after the U.S. Presidential elections are held in November 2020. This measure is yet another example of the anti-foreigner policy followed by President Trump to garner votes from essentially white Americans in the forthcoming elections.

The Trump Administration’s anti-immigration policy has been implemented steadily over the past three years. The United States has imposed a travel ban from African and Muslim majority countries and made it almost impossible for people to seek asylum in the United States. President Trump has taken a personal interest in constructing a wall along the United States-Mexico border to keep out illegal immigrants trying to enter the country from the south. The U.S. Citizenship and Information Services (USCIS), which is the bureaucratic structure responsible for regulating immigration into the United States has been closed since March this year, pushing back even the processing of existing applications for immigration into the country.

The immediate provocation for the new measure is the negative impact of the Covid-19 pandemic on employment in the United States. Between February and April 2020, the United States recorded more than 20 million American citizens losing their jobs in key industries where employers had sought H1B and L visa holders to fill vacancies. More than 17 million American citizens lost jobs in industries which were now sought to be filled by H2B non-immigrant visa holders from abroad.

By enacting this measure, some analysts assess that President Trump will “protect” about 525,000 jobs for American citizens, including African Americans, those without a college degree, minorities and disabled persons, during the rest of 2020. As the U.S. President stated publicly “American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work. Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers”.

Exceptions to this ban would apply to food supply chain workers holding H2B visas, or those required in the “national interest” of the United States. Under the “national interest,” exemption would be five categories of foreigners – those required in the defence sector; law enforcement; diplomacy or national security; health care connected with Covid-19; and those considered necessary for the immediate and continued economic recovery of the United States. The last category leaves open the possibility of American companies with political influence persuading the Trump Administration to allow in a smaller number of H1B and L visa holders for the rest of 2020.

The impact of this measure on India will be visible. The United States issues 85,000 H1B visas every year, of which about three-quarters are issued to Indian nationals, mainly for working in the technology industry. The trend for H1B visas between 2004 and 2012 showed that 500,000 visas were given to Indian nationals. Including their families, these visa holders accounted for almost 750,000 of the 3 million-strong Indian American community which is becoming increasingly active in the economic and political spheres in the United States.

Among the Indian technology companies that have benefited from H1B visas are Tata Consultancy Services, Infosys, Wipro, Tech Mahindra, HCL Technologies Ltd., and Larsen & Toubro Infotech. On their part, these companies are part of the 100 Indian companies who had invested $17.9 billion in the United States till 2017, creating 113,000 jobs in all the 50 states of the U.S.

The United States is India’s largest trading partner in goods and services. The sudden disruption in the flow of skilled labour holding H1B visas from India to the operations of Indian companies in the United States will be felt in the technology, accounting and manufacturing sectors of the U.S. economy. These sectors play a significant role in any national effort by the United States to recover from the economic downturn caused by the Covid-19 pandemic. The U.S. measure to ban non-immigrant visa holders from delivering their services in the United States economy will undermine one of the most vibrant and mutually beneficial areas in the overall India-United States strategic partnership.

(Written by Ashok Mukerji, former permanent representative of India in the United Nations. Former envoy in the Washington DC embassy).