Trump Takes War On H1B Visas Further, Makes Them More Difficult To Renew

The US government has made it more difficult to renew non-immigrant visas such as H-1B and L1, popular among Indian IT professionals, with a new directive saying the burden of proof lies on the applicant even when an extension is sought.

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The latest directive came even as India's foreign affairs minister Sushma Swaraj said in Delhi that she had raised the issue of H-1B visas with visiting US secretary of state Rex Tillerson and had asked the US to do nothing that would adversely affect India's interests.

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Rescinding a policy more than 13 years old, US Citizenship and Immigration Services (USCIS) said the burden of proof in establishing eligibility is, at all times, on the petitioner. USCIS said the previous memorandum of April 23, 2004 appeared to place this burden on this federal agency. "This memorandum makes it clear that the burden of proof remains on the petitioner, even where an extension of non-immigrant status is sought," USCIS said in a memorandum issued on October 23.

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Under the previous policy, if a person was once found to be eligible for a work visa, they would usually be considered for extension of their visa. Now, during every extension, they need to prove to the federal authorities that they are still eligible.

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After her meeting with Tillerson, Swaraj said people-to-people contacts had played a critical role in the development of India-US relations. "This is most evident in our mutually beneficial digital partnership, driven by our skilled professionals. In this regard, we have also discussed the very significant contribution to the US economy of Indian skilled professionals who travel and work under the H1-B and L-1 visa programmes," said Swaraj.

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Replying to a question, Swaraj said while there had been no change made yet to the H1-B rules, Indian professionals would be impacted if the US Congress passed a private member's bill in this regard. "H1-B rules can be changed either by an executive order (issued by the US President) or by the US Congress, and we are talking to both sides," she said.

American Immigration Lawyers Association president William Stock said the change was being made retroactively and would affect people already living in the country and not just new visa applicants.

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"In adjudicating petitions for immigration benefits, including non-immigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner," USCIS said.

The new policy is in line with the Trump administration's goal to protect American workers from discrimination and replacement by foreign labour, the website Number USA said.