US H-1B visa path just got complicated: Universities now face new restrictions

On 30 September, Tom Cotton—Republican senator from Arkansas—introduced the Visa Cap Enforcement Bill in the US Senate, seeking to strip colleges, non-profits and research institutes of their long-standing exemption from annual H-1B visa limits.

“Colleges and universities shouldn’t get special treatment for bringing in woke and anti-American professors from around the world," said Cotton in a release dated 30 September. “My bill closes these loopholes that universities have abused for far too long."

“The current US regime is seeking to drastically cut the number of immigrants across the board," said Russell A. Stamets, partner at Circle of Counsels, a New Delhi-based law firm. “This legislation combines anti-immigration policy with the regime’s well-documented attack on higher education in the US. Like it or not, this current regime is pursuing clear goals."

The bill targeting universities and non-profit organisations, which is expected to be opposed by American academia, follows another recent move by the Trump administration: a sharp increase in new H-1B filing fees for foreign tech workers to $100,000 from next year to stem the alleged misuse of these visas. The earlier fee was $1,000.

H-1B visas allow foreigners with specialised skills to temporarily work in the US. They are issued for three years and can be renewed for up to six years. The US government approves 65,000 H-1B visas cumulatively for all companies in a year. Another 20,000 visas are approved for foreign professionals who graduate with a master’s degree or a doctorate from an American institute.

But while IT services companies must abide by the 65,000 cap, universities who hire H-1B workers for postdoctoral, research, and faculty roles are considered cap-exempt.

“Under the current rules, universities, research institutions and non-profits can hire an unlimited number of foreign workers without being subject to the annual H-1B cap," said Poorvi Chothani, immigration attorney and managing partner at LawQuest.

These cap-exempt employers can also submit H-1B petitions at any time during the year, and the employee can start work once the petition is approved, completely bypassing the annual H-1B lottery.

Small fry

However, educational institutes corner a tiny share of H-1B visas given out annually. The top five recipients — including Stanford University, University of Michigan, and Washington University in St. Louis — have received only 1,471 between them this year, as of 30 June.

Comparatively, most H-1B visas are snapped up by tech companies. According to data from US Citizenship and Immigration Services, seven of the 10 largest users of H-1B visas are tech firms, including Tata Consultancy Services Ltd and Cognizant Technology Solutions Corp.

Cumulatively, the top 10 accounted for 36,737 H-1B visas between them, or more than half the total available this year, as of 30 June. The US government follows an October-September financial calendar.

Primary target: China

Experts said the move is aimed at preventing people from easily entering the US through universities. According to Stamets, the move was particularly aimed at stemming the influx of Chinese nationals into US universities and research institutions.

“China is purposefully sending academicians for higher-level programmes abroad," Stamets said. “They are an acknowledged powerhouse in scientific research and pose a threat to the research dominance of the US."

According to the US Department of State, China was the second-largest beneficiary of H-1B visas in the previous fiscal year, receiving 31,735 such visas. The top beneficiary was India, which got 150,647 visas. A breakup by profession is not available.

A second expert said that the bill, if passed, would affect temporary professors more than permanent (tenured) ones.

“Tenured professors in the US are similar to permanent faculty members in India — it can take many years to get tenure," said Suchindra Kumar, partner and leader for education, PwC India. “It will also affect students pursuing PhDs and hoping to work at US research institutes or universities."

Challenge incoming?

Chothani of LawQuest said colleges would challenge this legislation. “This bill will find a lot of support in both Houses on the back of anti-immigration propaganda, but universities are expected to strongly oppose it," she said.

For now, Senator Cotton’s bill shows that US policymakers are cracking down on even minority users of work visas, highlighting that the Trump administration is serious about sending back non-Americans.

On 24 September, Republican senator Charles E. Grassley and Democrat senator Richard J. Durbin targeted several companies including TCS and Cognizant over their hiring practices. Both senators wrote a joint letter to K. Krithivasan and S. Ravi Kumar, chief executives of TCS and Cognizant, respectively, on 24 September seeking responses on claims of race-based discrimination and substituting American workers with low-cost H-1B employees.

Earlier last month, Ohio senator Bernie Moreno proposed the Halting International Relocation of Employees (HIRE) Act to increase taxes on companies that hire offshore IT firms.