The Department of Homeland Security is considering new regulations that would prevent H-1B visa extensions, according to two U.S. sources briefed on the proposal. The measure potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending.
The proposal, being drafted in memos shared between DHS department heads, is part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign.
The administration is specifically looking at whether it can reinterpret the "may grant" language of the American Competitiveness in the 21st Century Act to stop making the extentions. The act currently allows the administration to extend the H-1B visas for thousands of immigrants, predominantly Indian immigrants, beyond the allowed two three-year terms if a green card is pending.
“The idea is to create a sort of ‘self- deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans,” said a U.S. source briefed by Homeland Security officials.
Officials at U.S. Citizenship and Immigration Services, which is under DHS, said they can’t discuss “any part of the pre-decisional processes.”
“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment-based visa programs,” said Jonathan Withington, chief of media relations for USCIS.
The proposal is part of a series of new regulations the Trump administration is taking at the same time a bipartisan group of lawmakers moves forward on legislation to tighten rules that award visas to H-1B holders. The administration also has announced plans to end work eligibility for spouses of H-1B holders. In addition, the administration is considering changes to the allocation of H-1B visas to give priority to more highly educated and skilled workers.
While the H-1B issue doesn’t draw the same attention as other immigration-related policy deliberations, such as building a wall across the southern border, it is significant to American employers. Tech giants such as Facebook and other big companies, from Bank of America to Caterpillar, have long argued that the 85,000 annual cap on these visas is too low and that they need to bring in more foreign tech workers because they can’t find enough highly-skilled American workers.
On the other side, critics of the program say H-1B visas are increasingly being abused and that American workers are being laid off as U.S. companies send work to outsourcing companies that employ thousands of H-1B workers.
Earlier this year, Trump signed an executive order calling for a review of the H-1B program in order to suggest changes to ensure the most skilled and highest–paid applicants receive H-1B visas. “This historic action declares that the policy of our government is to aggressively promote and use American-made goods and to ensure that American labor is hired to do the job. It's America first, you better believe it,” Trump said in April when announcing the executive order.
John Miano, a lawyer who represents American workers who say that they have lost jobs unfairly to low-skilled H-1B visa holders, said Trump can only do so much to fix H-1B program, which he said should be scrapped.
“You can throw a dart at a random provision in H-1B and delete and probably improve the problem,” he said.
Miano said he would welcome limits to the number of years. He has proposed pulling back the number to even three years. But expected that ultimately Congress would need to approve such a change.
The H-1B visa is typically issued for three to six years to employers to hire a foreign worker. But H-1B holders who have begun the green card process can often renew their work visas indefinitely.
The proposed changes would have a dramatic effect particularly on Indian visa holders considering more than half of all H-1B visas have been awarded to Indian nationals, according to the Pew Research Center.
Lawyers who represent the workers and companies expect lawsuits to be filed if changes to the program were sought without Congressional approval.
“This would be a major catastrophic development as many people have been waiting in line for green cards for over a decade, have U.S. citizen children, own a home,” said Leon Fresco, who served as a deputy assistant attorney general for the Justice Department in the Obama administration who now represent H-1B workers.
Fresco estimates more than 1 million H1-B visa holders in the country are waiting for green cards, many of whom are from India and have been waiting for more than a decade.