What Is The Impact Of 'Buy America, Hire America' On Indian IT Professionals?

Vivek Tandon, Founder and CEO, EB5 BRICS A lawyer and an investment banker, Vivek's primary focus is on educating investors in India and Dubai about EB-5 Visa Program and EB-5 regional center projects and EB-5 direct investments.

With its focus on preventing misuse of the H-1B program and stricter implementation of immigration rules,'Buy America, Hire America' should have actually been very beneficial for Indian IT professionals with the right skills and qualifications for specialized jobs US employers were struggling to fill with domestic talent.

However, the executive order simply ended up as a pretext for immigration authorities and agencies to discourage employers from hiring Indian professionals and to compel Indians, especially those working in the IT sector, to explore shift to other countries.

Administrative and Procedural Complications for IT Workers
While numerous changes and reforms have been proposed, the H-1B program remains most unchanged despite `Buy America, Hire America'. However, numerous administrative and procedural changes have occurred and these have made things a lot tougher for Indian IT professionals.

Seven out of every ten H-1B visas have been issued to Indians. Three occupations computer systems analysts, application software developers and computer programmers maccounting for half of total H-1B visas issued. This means the spate of legal and administrative restrictions on the visa program has impacted Indian IT professionals adversely.

Rejection rate for H-1B petitions filed by Indian companies have surged while American companies continue to have a rejection rate of less than 1 percent. Issue of Requests for Evidence(RFE) too has surged, contributing to higher costs and longer processing delays for employers.

The surge in issue of RFEs, in effect, presumes all H-1B visa applicants to be guilty of fraud or gaming the system and places the onus upon them to provide additional evidence to negate the presumption.

Even if the additional evidence is accepted and the petition is approved, the delay in the adjudication process makes it impossible for employers to predict the time frame involved in hiring a H-1B worker.

This has made American firms are becoming hesitant to sponsor H-1B professionals despite lack of domestic talent.
Indian H-1B professionals applying for renewals are facing rejections based on very narrow interpretations of the definition of specialty occupations. Considering decade long waiting periods for EB-category green card applications, rejection of the H-1B renewal leaves Indian IT professionals no choice but to head back to India.

While numerous changes and reforms have been proposed, the H-1B program remains most unchanged

Another administrative obstacle H-1B applicants face is the significant increase in compliances for employers planning to utilize H-1B professionals at third-party sites. Each third party site is treated as an independent assignment, which means IT workers are no longer assured of the three-year visa.

Instead, the visa is issued only for the duration of work in the third-party office and employers are ending up applying for renewals in six to twelve months after the original approval. All this makes hiring a H-1B workers very expensive for the American employer.

Uncertainty Plaguing the H-1B Program
Administrative obstacles apart 'Buy America, Hire America' has led to a lot of uncertainty for H-1B workers in the US.

The proposal to bar spouses of H-1B workers to work on their H4 visas has been pending for a long time now. The executive order emphasizes on restricting H-1B visas to the most skilled applicants for the highest paid jobs.

Yet, jobs requiring a lot of skills, say a brain surgeon, need not be the best paid ones. In any case, skill and wages are merely two of the four parameters normally used to identify specialty occupations.

The end results are that the entire H-1B process has become one big lottery where neither the employer nor the worker can be reasonably sure of the outcome of the process. With immigration authorities not required to give applicants an opportunity to submit more information before taking a decision, Indian IT professionals just cannot be sure of their future prospects in the country.

The Perception Issue
Finally, the way the H-1B program has been targeted during 'Buy America, Hire America' does not do justice to the contributions of Indian IT workers to the American tech industry.

The biggest impact of the executive order has been the perception that Indian IT professionals are being singled out and are being discouraged from working in the US. Unsurprisingly, this has led to a surge in Indian skilled workers exploring alternative immigration destinations like Canada.

Interestingly, Canada's tech industry has grown leaps and bounds during recent years and this has coincided with Indians becoming the biggest source of successful applications under Canada's Express Entry application system for permanent residence in the country.

And it's not just Indian professionals who are being forced out of the US. Many American tech companies are setting up offices in Canada simply to enjoy the ability to hire a foreign skilled worker from India or any other country without onerous formalities and procedures.

Another impact on Indian IT professionals has been the marked increase in number of EB-5 filings by Indian investors. Perhaps those in a position to afford the USD 500,000/1 million investment for a fast-track green card are using this route to escape the difficulties involved in seeking H-1B extensions and qualifying for the green card through the EB1 to EB-3 route.