The Post-Trump H1B Visa Tip Sheet – Analysis

By Nikhila Natarajan

Skivving at work and secretly hoping for an H1B interview confirmation from the US Embassy is a theme that’s bitten the dust for Indian millennials working in technology companies here.

They must start performing in India first.

Millennials’ reboot

Even before Donald Trump’s tough stand on immigration, H1B visas had become a lot tougher to come by. What’s changed now is that technology companies in India are choosing who to send on H1Bs much more carefully — “highly skilled is now really highly skilled, not just any team lead or project manager, as it used to be earlier.”

Take Accenture, for example. This US headquartered company which has 100,000 people in India, its largest workforce world over. With H1B exits from India getting scrunched after Donald Trump’s tough talk on immigration, team leaders are seeing a pleasant upside — freshers from engineering colleges and people with three to four years experience who would earlier be skivving at work now “have to perform because their career growth will have to happen here until the US clampdown eases,” says the head of a 100 strong US healthcare team at Accenture.

Senior management folks of Indian IT companies are mighty pleased with the fallout — Trump has done for them what they could not do for many years — get the under-30s to work harder in the early years of career.

Managers complaining about indolent 25-year-olds who would give the impression of being hard at work, but would actually be scheduling emails to drop at midnight or 4 a.m. into their managers’ accounts, and be indulging in other versions of the book jacket trick have now got their revenge.

Nationalism in a foreign land has turned out to be a fine weapon for Indian IT minders.

Will all H1B workers be paid at least $130,000?

No, not for now. This became a juicy news headline simply because it was one of the several hot buttons mentioned prominently in a proposed bill that remains pending. Thousands of bills are proposed in Congress each year, only a small number are ever signed into law. Despite that statistic, there are solid reasons that Americans are pushing for the higher base rate — it’s one way to raise the quality and a first rate method to pre-empt some of the common loopholes that H1B shops exploit in the US.

Indian nationals are the largest single group of recipients of the 65,000 H1B visas issued yearly to new applicants under a Congress mandated cap. Exemptions on the cap are available to up to 20,000 applicants who have a US master’s degree.

The actual number of Indian nationals working in the United States under the H1B programme is significantly higher, however, because H1B visas typically roll over in a three year plus three year cycle.

How much riskier is post-Trump H1B stamping?

Shouting matches on primetime telly want us to believe that post Trump H1B stamping is fraught with greater risks — the facts point elsewhere though. Well before Trump took office, the rate of H1B refusals on the grounds of insufficient paperwork were spiking — 221 (g) in technical parlance.

There are altogether three kinds of outcomes for US visa applicants — approval, rejection and refusal under 221 (g) of the Immigration and Nationality Act (INA). This third outcome is what keeps the legal wonks at body shopping companies in the US terribly busy.

Once there’s a 221 (g) refusal, it can take many months or years for a final decision. For workers in the IT consulting, these kinds of refusals have returned big time and Trump has nothing to do with it. Closer scrutiny is always possible under any administration basis complaints to the Department of Labor that oversees the H1B worker visas.

Although this kind of refusal is more common in H1B filings involving offsite staff, onsite employees and consultants are also under the scanner.

Why is this happening? One look at the Department of Labor’s blacklist and you’ll know. US cities are rife with people running shady H1B corner shops whose owners look the other way when their H1B workers flout rules in exchange for a foothold in the US. A DoL H1B section wonk who prefers to be anonymous tells us this story.

Ramesh, a Java programmer from Guntur, Andhra Pradesh, living in one of the seedier parts of Rego Park in New York, lost his job at an investment bank in Manhattan. Although he went to work in Manhattan, he was part of the corp to corp arrangement now fairly common among IT workers — where Ramesh’s H1B is held by a body shopper who in turn leases Ramesh out to the end client. The bank pays the body shopper who keeps a generous cut and pays the rest to Ramesh. It isn’t necessary that there’s only one layer in corp to corp although it helps all downstream parties when the layers are less.

When Ramesh did not find work for four weeks, he got worried because there were bills to pay and he decided to do something radical. He reworked his resume and posed as a PMP or project management professional, and set about looking for colleagues or friends who could take the interview call on phone — the first round is rarely a face to face. Ramesh eventually found a willing ally, thinking he’ll get through the initial hurdles and while the company gets its act together, he’ll prepare for the PMP exam and make it all work. The guy who took the phone interview ratted on Ramesh, DoL got onto the case, Ramesh’s H1B holding company may soon be blacklisted.

This is just one of the many sketchy side-businesses that have thrived in the last decade or so. The criticism that most often finds play in news cycles is that outsourcers get Indian workers on low salaries without attempting to find American talent. Here’s one of the numerous ways that happens. An H1B visa holder lands a job with the end client and then informs the body shopping company which officially “employs” him about the deal. Next, that company advertises in a remote corner of some obscure local rag for the same position and hopes that either no one sees it or the rate is so bad no American will apply and the rest goes as per script.

In January 2017 alone, three bills have been introduced in the US Congress to amend various provisions of the H1B nomenclature that will make it increasingly difficult to commit fraud. These bills draw from detailed information from the Department of Labor and civil society on cases like Ramesh who try to subvert the system.

Srinath Raghavan, Senior Fellow at Centre for Policy Research, New Delhi writes, “[A]s much as the technicalities of the immigration regime, we should worry about the subtle re-emergence of such (racist/xenophobic) attitudes in the policy discourse of the Trump administration. When a white supremacist like Steven Bannon publicly grumbles about South Asians heading Silicon Valley corporations, the echoes of Church are unmistakable.”

That too, this too.

The American judiciary will likely play an outsize role in a Trump presidency and keep checking presidential interference in foreign affairs. Immigration will likely dominate most battles. Given that Trump will not back down and there’s a 4-4 split in the US Supreme Court, travel rules will remain fluid for a while. This will add to the worries of India’s H1B workers.

Observer Research Foundation

Observer Research Foundation

ORF was established on 5 September 1990 as a private, not for profit, ’think tank’ to influence public policy formulation. The Foundation brought together, for the first time, leading Indian economists and policymakers to present An Agenda for Economic Reforms in India. The idea was to help develop a consensus in favour of economic reforms.

7 thoughts on “The Post-Trump H1B Visa Tip Sheet – Analysis

  • February 27, 2017 at 2:50 am
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    I Hope something happens with this H1B scam. There is no fun in doing consulting because the employee is getting ripped of all the hardwork and the employers are making money.

    Every decent client pays 80 – 95$ per hour to the vendor but the employee gets 40 – 50$ per hour. The employers are siphoning of 50% of the billing…that is pure abuse.
    I wish there is a law where the Vendors do not get more than 10% of billing….whether it is one vendor or multiple Vendors between Client and the worker…..Similarly like When someone sells the home …the commission is 6% …irrespective of how many buyers come and see the home before the house is sold. This approach will clear the choke(parasite) vendors between Client and employee.

    Also big outsourcing vendors like Infosys/Cognizant should stop abusing H1B and employing local US citizens

    Reply
  • February 27, 2017 at 3:14 am
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    Example…If the Client Pays 90$ per hour…only 9$ shud be paid to the vendor/Multiple Vendors…and 81$ to employee

    Reply
  • February 27, 2017 at 10:04 pm
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    Accenture is not a US headquartered company.

    Reply
  • February 27, 2017 at 10:10 pm
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    Rego Park is not “seedy”… “The total crime rate in 2014 was down almost 90 percent compared to in 1990.” [Wikipedia]

    Reply
  • March 1, 2017 at 1:22 pm
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    Why aren’t Indian engineers, Project Managers, techs, etc working on India’s 18th Century infrastructure instead of being sent to US?

    Reply
  • March 5, 2017 at 10:47 pm
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    @VP – shows your complete lack of understanding of the situation and racist mentality. remember your forefathers were also immigrants someway or the other.
    Now coming to your point. I have worked my way up to a management role in US and I can bet most of the folks my age would not match the variety in my resume and my experience in handling large teams. Obviously there has been some level of systematic abuse, but that is merely 10% of the ad apples who should be sent back. For remaining, they are noway lesser than ‘US born’ counterparts.

    oh and by the way, we have moved way past the snake charmer’s day. Hope your parents tell you that. Now with the 18th Century infra, we are sending 90+ sattelite of yours in space. So zip it up :)

    Reply
  • March 13, 2017 at 2:44 pm
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    @sambc : Why dont you go back to India? You speak with so much indignation and with pride! You can be sure the US wont miss you…

    Reply

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