The H1B non-immigrant work visa program is once again on the political stage, as presidential leadership in the US is about to change. As noted in other articles, President-elect Trump has stated he wants to impose restrictions on the H1B program to limit its use as a “cheap labor program.” He has committed to putting the H1B visa issue on the agenda for his first day in office, signaling his intention to make reform a priority.
IT companies that are primarily located in Silicon Valley would be affected the most by program reform by Trump, and they have been vocal in opposing any restrictions on foreign IT workers. The majority of H1B work visas are given to Indian IT workers, primarily through outsourcing companies. President-elect Trump’s H1B visa plan could eliminate this avenue for granting work visas.
Obama’s Last Minute Move to Expand H1B Visa Availability
Meanwhile, President Obama is getting ready to step aside January 20th, but he is pushing forward some new regulations for the H1B program that would take effect January 17th 2017. This will affect the new Trump H1B visa policy in some important ways.
Among the changes is an expansion of the ‘cap exempt’ category for H1B visas, which includes non-profit hospitals, as well as educational and research institutions. Those institutions and their for-profit partners can hire an unlimited number of H1B visa workers, as long as some relationship to the non-profit is in place.
In essence, the rule change will make it easier for companies to partner with non-profits, allowing more employees to be included in the cap-exempt category.
This is significant rule change because one of the challenges of obtaining an H1B visa is making it through the annual lottery each year, where only 85,000 visas are issued to more than 230,000 applicants. Now, a company could circumvent the lottery for H1B workers by partnering with a non-profit, and placing the position in the cap-exempt category.
The Obama-Trump H1B Visa Chess Game
For those watching the transition of power in the US, the H1B program is part of a larger chess game to preserve as much of Obama’s legacy as possible, and resist widespread changes by Trump. Because the Obama H1B visa rule changes are administrative (not subject to Congressional approval), to reverse the new rules is a time consuming and difficult process. It is unlikely that will be a priority for the new Trump administration, which will be focused on reforms that directly affect companies that abuse the program.
What Does This Mean for Foreign Workers Seeking H1B Visas?
As we have repeated on this blog, the best way to obtain an H1B visa is to find a cap-exempt position, since you will not have to endure the lottery or abide by the fixed annual calendar. Now, this route is going to be easier than ever, as more for-profit companies will be permitted to use partnerships with non-profits to hire the full range of specialty occupations.
For example, an IT worker could be hired to fulfill a role in a company that works closely with a non-profit hospital, so the job does not have to be healthcare related. In other words, support and administrative services that qualify as ‘specialty occupations’ could be supplied by a company to their non-profit partner, but the H1B visa sponsor is the for-profit company.
We can expect companies to begin taking actions to utilize this rule change and hire more H1B visa workers under the cap-exempt category. If you have questions about how to locate cap-exempt positions, please contact us at any time.
- December 6th, 2016