Is it TIME to panic about H1 / L1/ F1 visas?

13 March 2017

Will Mr. Donald Trump #draintheswamp off Indian IT workers in the US?

 

Will Mr. Donald Trump kill Indian IT industry and bring all IT jobs back to USA?

 

Lot of ink has dried from articles touting how Mr. Donald Trump will be tough on H1/L1/F1 visas. The news originating from White house and US media has led to panic among Indian IT industry and scores of people whose livelihood depends on the industry’s ability to service clients based out of USA. 

 

The essence of any discussion among Indian community, whatsapp groups, facebook groups has a common theme.

 

·         Is it game over for Indian Outsourcing industry as we know it?

·         Will we be asked to leave the country at short notice?

·         How will I dispose of all my belonging (household goods, cars, house etc) at such short notice?

 

 

Our view - Take a DEEP breath. It is NOT time to panic YET. Fear of unknown leads us to believe #alternatefacts :-).

 

Below is our attempt to explain the governance system in the USA and how any action from Mr. Donald Trump ALONE can and cannot influence the H1/L1/F1 visas.

 

1. Can the President's Executive Order (EO) evict non-immigrant visa holders from US?

A. No. Any action to evict a law abiding legal resident would require the government to prove wrong doing as the first step. An EO alone is not enough to do this.

 

2. Can the President's Executive Order (EO) deny H1 / L1 visa extension requests while we are in the US?

A. No. USCIS has to follow the current law while adjucating any H1/L1 renewal petitions. They cannot rely on the guidance in EO to deny renewals.

 

Note: USCIS falls under the Executive branch of government, they have every right to do greater scrutiny of each application. Issue RFE's for each application and there by increase the amount of time that takes for a renewal request to be processed. This already happens today, we can anticipate an increase in the number of folks who will receive RFE. This is a plausible scenario.

 

3. Can I travel outside US and return without any problems?

A. The EO issued by President puts a ban on entry of citizen from a specific list of countries into US for a temporary period. For rest of the travelers the risk of not being let inside the US has been unchanged. Folks have been deported for various reasons. The Immigration officer has broad authority to deny entry to anyone into the US if they deem fit. The Presidents EO has not changed this situation. As many immigration attorneys have advised - if your travel is not urgent and can be avoided, stay put.

 

4. Republican party controls all 3 branches of government - White House/ Congress/ Senate. Can they change the law to put restrictions on usage of H1/L1/F1 visa?

A. Yes. This is possible. But will this actually happen, its wide open. There is a saying - Great ideas go to die in Congress. Any change in law takes majority of Congress and Senate to vote for it prior to President signing it into law. A complex matter such as Immigration law would be a monumental task to change. Special interest groups both favoring and opposing any changes to the law will lobby the Congress and Senate to push their causes. In this fight we see AILA and US Chamber of Commerce as allies who will defend the current status quo. Past attempts at immigration law changes were drawn out battles and died midway. Assuming the changes become law of the land there is one additional step. USCIS has to go thru a regulatory process to codify the changes in law to implementation level rules. Average time for a rule change following the US Federal regulatory framework takes 12 to 18 months. With this context in mind its anybody’s guess as to how soon what can happen.

 

5. What can Indian government for that matter any government do to counter such protectionist behavior from Mr. President?

A. Answer ranges for nothing to may be reciprocating in kind. Given how intertwined the global trade relationships are, no government would want to openly take a confrontational stance with the largest economy in the world. In Mr. Trump’s words its called - LEVERAGE. Indian government can lodge a protest with WTO against any actions taken by US government. We expect those to be symbolic actions without much impact / outcome. 

 

(Disclosure: The thoughts expressed are based on the understanding of INS Act and exposure to US government functioning while advocating for legal immigration changes. Please do NOT construe our opinion as legal guidance in any fashion/shape or form. This is an opinion ONLY.)

 

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