360 degree: H-1BThe litmus test

Donald Trump won the Presidential election on the straightforward and simple slogan to make America great again. His definition of greatness is rooted in nativism, which asserts that the deficiencies of the United States today are attributable to foreign presence and influence. Trumpism is a genie that has been let out of the bottle and cannot be put back. Therefore, it goes without saying that his policies will centre around the theory that the fewer the migrants in the US, the better it will be for the nation.

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Such an approach has appealed to a large number of people, particularly the whites, who have felt that the minorities of various kinds have been more privileged than them. Losing jobs to the migrants and outsourcing is a lament, which began to be heard right from the beginning of the economic meltdown and Trump was not the first to promise that outsourcing will be reduced and work permits will be brought down. At the same time, it has been realized that outsourcing is a win-win situation for the US economy and that foreign workers are essential, particularly in the IT industry. A balance has to be struck between the imperatives of local sentiment and the dictates of international cooperation. Several other countries too have toyed with the idea of indigenization, without being able to implement it.

Trump, of course, fanned the flames of xenophobia and anti-migration sentiments by specifically mentioning that Muslims and Hispanics were candidates for deportation and building of walls, even though, as an international businessman, he should have known the need for interdependence of nations and a liberal immigration policy. The initial alarm had already been tempered towards the end of his campaign, as demonstrated by the fact that he was able to win some votes of the minorities in the battle ground states.

The transformation of candidate Trump into President Trump is inevitable and there are signs of thaw in his extreme positions on several issues. From suggestions of massive deportation of various categories of migrants, he has moved to action against illegal migrants and the great wall of Mexico has begun to recede. But, as has been indicated in his agenda for the first hundred days, some action against “abuse of visas” will be taken and the appointment of Senator Jeff Sessions, who has a strong position on migration as the Attorney General is a confirmation of the emerging policy.

Amidst the chaos of the various and contradictory pronouncements by Trump during the campaign, observers had identified certain strands in his thinking, which might be favourable to India. His strong position on terrorism, his suspicion of Pakistan and his business interests in India were some of these features. He had also participated in an Indian community event, where he declared himself as a fan of Hindus and India. But, on the practical level, there was apprehension that he would restructure or restrict the work authorization visa (H-1B visa) that had benefitted thousands of technically qualified Indians to build their fortunes in the US. As expected, his agenda for the first 100 days has inevitably included a call for “a scrutiny of abuses in America’s work visa system”, which will have implications for the Indians in the IT sector, present and future.

The H-1B is a non-immigrant visa, which allows U.S. employers to temporarily employ foreigners in specialty occupations. The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor and requiring the attainment of a bachelor's degree or its equivalent as a minimum (with the exception of fashion models, who must be "of distinguished merit and ability").  The foreign worker must also possess state license, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

The H-1B visa was the main instrument of Indian migration to the United States of various categories, ranging from nurses, doctors, engineers and teachers to IT professionals, many of whom have become permanent residents and citizens over the years. Although the declared policy is only to scrutinize abuses, the objective is to find jobs for the unemployed Americans, and the process will inevitably reduce the visas and restrict Indian migration. The silver lining, however is that Trump is a businessman, who will not hurt industries and once he realizes the folly of throwing the baby with the bath water, his eagerness to clear the swamp may assume a more realistic approach. The very acute shortage of skilled labour in the US will not permit an immediate switch to indigenization and it is estimated that it will take a minimum period of seven to nine years to bring about a significant change. The instinct will be to preserve the advantages of the economy rather than to disturb it at this point.

But the fact remains that there will be a period of uncertainty during the review process. Attention will focus on the fact that a majority of temporary work visas, are issued each year by the US to Indian workers, mostly in the information technology and related sectors. In 2015, 64 per cent of the 85,000 H1B visas allowed in the US were issued to Indians, including 84 per cent of visas issued for technology jobs. These include 65,000 visas for foreign nationals based abroad, and 20,000 visas for foreign students in the US. The large issuance of H1B visas to foreign nationals, particularly to one country has repeatedly been criticised by members of both the Republican and Democratic parties. Many of the conditions under which American companies can hire foreign graduates do not need them to first try and hire US nationals, a loophole most criticised by opponents of the H1B programme.

 As for abuses of the system, India is not free of accusations. It is alleged that American companies have been circumventing the law by getting Indian companies like Infosys and Tata Consul tancy Services (TCS) to apply for work visas on behalf of Indian workers. Retrenched workers of certain companies had filed federal lawsuits against Infosys and TCS, accusing them of violating the spirit and intent of the H1B programme. But India has diplomatically and through US companies resisted moves to restrict the visas for Indians, pointing out the mutual benefits of the existing system. Tightening of the visa rules will be a matter of concern to India.

India’s dialogue with the Trump Administration is likely to begin with a visit of Prime Minister Modi to Washington during 1917. The agenda will be heavy in the light of the shifting priorities of the US in the Asia Pacific region. But given the fact that both Trump and Modi have the right business instincts, it can be expected  that the visa issue will be resolved without delay and that there will not be any unfavorable changes in the existing system. The visa issue may be the first litmus test of Trump’s goodwill towards India he professes.

(The writer is a former Ambassador of India and Governor for India of the IAEA)