Lok Sabha Question No. 2328 (UNSTARRED), answered on 2018-08-01
Subject: Impact of US Policy on IT Professionals
Ministry: ELECTRONICS AND INFORMATION TECHNOLOGY
Asked by: JAYADEV GALLA

## GOVERNMENT OF INDIA MINISTRY OF ELECTRONICS & INFORMATION TECHNOLOGY

## LOK SABHA UNSTARRED QUESTION NO.  2328

TO BE ANSWERED ON: 01.08.2018

## IMPACT OF US POLICY ON IT PROFESSIONALS

## 2328.    SHRI JAYADEV GALLA:

## Will the Minister of ELECTRONICS AND INFORMATION TECHNOLOGY

- (a) the details of each of the Executive Orders issued by US since December, 2016, which impact Indian IT and other professionals in the US;
- (b) whether it is true that Finance Minister has recently met US Commerce Secretary and raised India's concerns before him; and
- (c) if so, the response of US in this regard and the steps Government proposes to take to resolve the problems faced by Indian professionals?

## ANSWER

## MINISTER OF STATE FOR ELECTRONICS AND INFORMATION TECHNOLOGY (SHRI S.S. AHLUWALIA)

- (a):    The  US  Administration  has  released  a  series  of  immigration-related  Executive  Orders,  policy  memos, administrative appeal decisions, and other regulatory changes that may impact Indian IT and other professionals in the US.  The chronological details since 2016 are paced at ANNEXURE .
- (b):      No,  Sir.      However,  the  Hon'ble  Minister  of  Commerce  and  Industry  met  with  various  U.S.  Government officials during his US visit in June 2018 and raised the issues and challenges facing the Indian IT industry in the U.S. and underlined an urgent need to redress in mutual interest.
- (c): The Government remains closely engaged with the U.S. Administration and the Congress on all issues relating to movement of Indian professionals including the H-1B visa programme. In these engagements, the Government has emphasized  that  this  has  been  a  mutually  beneficial  partnership  which  should  be  nurtured.  Indian  skilled professionals have contributed to the growth and development of the U.S. economy and have helped the U.S. retain its  competitive  edge  and  innovation advantage.    Further, the  Government  has  undertaken  a  consultative  approach with the industry associations in the country and these are also suitably engaging with their U.S. counterparts.

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ANNEXURE

## KEY EXECUTIVE ORDERS AND OTHER ADMINISTRATIVE MEASURES BY THE US ADMINISTRATION

The US Administration has released, after December 2016, a series of immigration-related Executive Orders, policy  memos, administrative  appeals  decisions,  and  other  regulatory  changes.  The  key  ones  of  significance  to  the  Indian  IT  sector  are  as follows (listed chronologically):

-  Policy Memo : On 31st March 2017, U.S. Citizenship and Immigration Services (USCIS) introduced a policy memo on H1B  usage,  wherein  the  agency  would  be  inclined  to  deny  H-1B  petitions  for  'entry-level  computer  programmers'  and petitions  filed  at  Level  1  wages.  This  effectively  raised  the  floor  for  what  qualifies  as  a  'specialty  occupation,'  and employers seeking H-1B visas for individuals at these levels must now provide further evidence to establish the same e.g., via higher education degrees/ higher wages.
-  "Buy American, Hire American" : On 18 th April 2017, a Presidential Executive Order (EO) entitled "Buy American, Hire American" targeted high-skilled worker visas and global outsourcing, among other items. The EO has been the framework for a number of administration policy changes and proposed changes that target the visas most commonly used by India's IT sector. US President, Attorney General Sessions, Labor Secretary Acosta and others have indicated these measures are just the beginning of what will be sought.  [Note that one month prior to the EO, a draft of the EO was leaked that was far more

restrictive and expansive relative to the visas.  Included were provisions to eliminate the current H-1B lottery and move to prioritize the allocation of H-1Bs by skill set and wage levels.]

-  EO on 21 st June 2017 : US President signed an Executive Order that strikes part of a 2012 order signed by former President Obama instructing the State Department to ' ensure that 80% of non-immigrant visa applicants are interviewed within three weeks  of  receipt  of  application. '  This  is  part  of  the  US  Administration  intent  to  quietly  beef  up  the  ' extreme  vetting ' procedures for people seeking visas to enter the U.S. White House officials refer to the decision as an effort to strengthen security. Immigration experts anticipate these delays could prevent foreign workers seeking H-1B visas from entering the U.S. for their scheduled work.
-  Proposed Changes to LCA : On 3 rd August 2017, the Department of Labor (DoL) sought comments from relevant agencies on proposed changes to the Labor Condition Application (LCA) forms. NASSCOM believes the proposed addition of new fields (i.e. name of secondary employer and university from where H-1B employees qualify) is not authorized by the H-1B visa  statute,  and  hence  not  necessary  for  DoL's  proper  performance  of  its  LCA  responsibility.  Further  it  will  have  no practical utility, and could potentially harm innovation and competitiveness in key segments of the economy.
-  Justice-State  Coordination :  On  11 th October  2017,  as  part  of  the  continuing  attack  by  the  U.S.  Administration,  the Departments of Justice and State announced that they have formalized a partnership to share information and resources, and pursue  claims  of  discrimination  based  on  national  origin,  among  other  things.  This  entails  breaking  down  interagency barriers and increasing information sharing and coordination on these matters. A similar 'Memorandum of Understanding' was issued between DoJ and USCIS in May 2018.
-  Proposed  changes  to  H-1B  and  H-4 :  On  14th  December  2017,  the  Department  of  Homeland  Security  and  the  U.S. Citizenship and Immigration Services (USCIS) published notices that they intend to propose several changes to the H-1B and H-4 visa programs. These were part of the US administration's semi-annual report on future regulatory actions, and include:
- a) Moving to rescind the current policy allowing H-4 visa holder spouses of certain H-1B visa holders to work while they are in the U.S. (This proposal was expected in February 2018, but USCIS has pushed the anticipated release back to June.)
- b) Establishment  of  a  pre-certification  scheme  to  be  administered  by  USCIS  and  set  between  the  LCA  and  H-1B  visa petition adjudication processes. (This proposal was expected in February, but has been pushed back with no new release date announced yet.)
- c) Changes in the adjudicatory criteria for H-1B eligibility, establishing explicit employer responsibilities for clients of companies  sponsoring  H-1B  visas,  and  adding  additional  restrictions  relative  to  wages  (with  a  notice  of  proposed rulemaking  expected  in  October  2018).  Under  this  proposal,  DHS  will  propose  a  rule  to  revise  the  definition  of 'specialty occupation' for H-1B eligibility to 'increase the focus on truly obtaining the best and brightest.' It would also revise the definition of employment and the employer-employee relationship and add new requirements designed to ensure that employers pay appropriate wages to H-1B workers.
- d) Also expected to be released in October 2018 is a proposed rule to scale back the STEM OPT program, i.e. optional practical  training  work  visas,  which  allow  foreign  students  to  stay  in  the  US  a  bit  longer  after  completion  of  their studies. The expected change would reduce the number of degree programs eligible and the length of time someone can stay to the pre-Obama-expansion rules.

Note: these  are  all  intended  changes.  Each  of  these  will  be  subject  to  a lengthy  rule-making  process,  beginning  in 2018. The process will take many months and could be subject to court challenges. The agency is required to solicit public comments on proposed changes.

-  February 22 nd 2018 : USCIS issued a policy memorandum mandating stricter adjudicatory standards and oversight for H1Bs that will be placed at 3 rd party sites (client sites).  The memo also directed adjudicators to routinely limit the time period H-1B visas are approved for when the non-immigrant will be working at a client site. The memo largely reiterates current practice as applied to the Indian and Indian IT services companies.  It formalizes such practices and directs that they be applied  to  all  H-1B  petitions  and  H-1B  beneficiaries  involving  3rd  party  placements.   For  the  Indian  and  Indian-centric companies, it increases administrative burdens and the associated costs, e.g., more and more complicated RFEs, need to file more petitions. That said, these norms make the whole process of getting and renewing visas more onerous and expensive
-  May 9 th 2018 : The Office of Management and Budget (OMB) released the regulatory calendar confirming various USCIS plans on proposed and final rule makings as outlined above
-  May  11 th 2018 :  The  US  Justice  Department  and  US  Citizenship  and  Immigration  Services  (USCIS)  announced  a  new Memorandum  of  Understanding  (MOU)  between  the  two  agencies,  outlining  steps  they  will  take  to  collaborate  in  the

enforcement of the nation's immigration laws, particularly with respect to "discrimination by employers bringing foreign visa workers to the United States. The overall impact of the MOU is likely to be increased oversight and scrutiny.

-  In addition, we have observed a significant increase in administrative oversight and enforcement actions that include:
- 1) Initial reports of increased denials and RFEs (Requests for Evidence)New adjudicatory standards for certain classes of individuals, such as Level 1 or Level 2 beneficiaries and younger computer programmers
- 2) Vastly expanded inspection and audit schemes by DoL
- 3) Significant increase of audits and inspections at client sites
- 4) Visas are being approved for shorter durations
- 5) Reports of enhanced scrutiny of approved visa holders at the port of entry
- 6) A new and increasingly hostile tone to the visa interviews where the starting point seems to be to look for a reason to deny the petition, particularly when it involves a consulting arrangement
- 7) Proposed changes to the required labor certification forms in order to collect and make public sensitive, proprietary information
- 8) Selective aggregation and public release of previously unavailable government data on the visa programs in order to put them and the major sponsoring organizations in a negative light.  For example, aggregating the number of H-1B initial  approvals  and  approvals  for  extensions  and  presenting  these  figures  as  if  they  represented  only  new  visas. Similarly, releasing wage data submitted by companies on LCA forms rather than the higher actual wages often paid.
- 9) The Administration seeking to reinterpret US Civil Rights laws and use them to possibly discriminate against and prosecute the sector.
- 10) Continue to charge 50:50 companies thousands of dollars more in fees than other users of the H-1B and L-1 visa programs.

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