Earlier today a piece of news story was reported by Reuters on setting 15% H1B cap by country and very specifically India due to the trade tensions and tariffs. Based on that one piece of news by Reuters, many media agencies picked that up and the same is republished based on that. I recall the news story of 130K USD minimum wage limit news for H1B, how much confusion it has created and how far it went after that few days…basically no where. Let me clarify the reality on the current news.
H1B Cap Limit of 10 to 15 % by Country – What is it ?
The high-level gist of the news is that, US is planning to put in country limits for H1B quota cap. They say that US is considering putting the limit of 10% to 15% limit on H1B visa cap by country for India and others, who have put in data storage requirements for US companies to store their data in their country like India. This is based on India and US related trade tensions related to tariffs and last year data storage related escalations by Mastercard and Others. In fact, on the data storage requirements news, currently the Indian Central bank is looking at the issue of payments data storage requirements again based on the concerns raised by these companies. Anyways, the basis for the news that US is planning for this H1B limits is that there are data storage requirements and it is like “tit-for-tat” . Also, the reason for discussion now is that Mike Pompeo’s, who is US secretary of state is visiting New Delhi in upcoming days. Now, let’s do the fact checking…
Update : Reuters reported again next day on June 21st,2019, where they said that US State Department confirmed that US does not have any such plans. See below screenshot and check out Reuters Article
Who reported the H1B Cap Limits Story ? Is it Official and True ?
Well, all the news originated on the basis of one news story reported by Reuters, check that news at : Reuters on setting 15% H1B cap . Based on this news story, many other Indian media agencies like NDTV, Times of India, Channel News Asia, and many others have picked it up based on their collaboration and published it all over. Also, one key thing to note is that this news is reported by Reuters India and they say it is collaborated with US counterparts. Now, the news reported says that it is sensitive info and cannot have names.
In any case, it is NOT an official press release done by White House, USCIS, DHS or US Secretary of State, etc….It is an based on some insider information that Reuters claims and neither Indian Government or US government made any official press release on such plans or thoughts… To give you a perspective of reality check on these kinds of news, earlier this year we had an official press release, Trump speech on Introduction of Merit Based Green Cards – Points System by Trump , so far on such a big announcement, there are NO details as of today. Also, many such news stories are written because everyone wants some sensation in news, something controversy…something to discuss and get more pageviews… Also, this news is NOT written by a SINGLE reputed US Media Agency yet like CNN, WSJ, New York Times, etc….If it were to be such a big deal, would have been covered by major US news outlets. Now, opinions aside, let’s look at reality
Can Trump Administration put per country cap of 10% to 15% on H1Bs ? How realistic is it ?
To give you a perspective on history, the H1B cap was changed in 2004, where they introduced 20,000 US Masters Cap and the H1B cap was reverted from 195,000 to 65,000. The change of H1B cap from 195,000 to 65,000 was based on AC 21 act by congress. See below screenshot and check USCIS Official AC21 reference. The introduction of US Masters Cap was based on the H1B visa reform Act of 2004. See below and Check USCIS Official H1B Reform Act Reference.
Both of these were Congress driven and USCIS only implemented them. So, technically the current administration cannot do anything random like introducing of the per country limits based on some Data Storage Requirements by another country.
Does President has authority to do so for H1B Cap ? Recent Travel Ban ?
In recent times, President Trump leveraged the INA Section 212(f) for the travel ban. If you look closely below screenshot of INA 212(f), this may be invoked by president to ban individuals entering US that are not in the best interests of US. But, in the current context of putting per country cap like 10 to 15% of H1Bs as quota during the H1B process is something very different and this cannot be done as President does not have direct authority to change the statue or congress action. It will go through a lot of lawsuits, if something is done so just for trade negotiation.
Also, as you know, current Trump administration is already having hard time with H4 EAD Rule Removal Lawsuit , despite having it as their priority in their regulatory agenda. Also, they could NOT even change the H1B Lottery process fully and only went for H1B registration Rule… While, it can be a topic to discuss for news agencies, I do not think that this can be easily done like a trade talk and putting tariffs as immigration is very different from trade in this context and regulations do not allow such changes without Congress blessing. Also, even if they were to try it, it has a long way to go and nothing worry, there will be enough lawsuits to justify the value and economic impact of H1Bs and it will NOT go anywhere…So, don’t worry by reading the media reports…
While, it can be a topic to discuss for news agencies, I do not think that this can be easily done like a trade talk and putting tariffs as immigration is very different from trade in this context and regulations do not allow such changes without Congress blessing. Also, even if they were to try it, it has a long way to go and nothing worry, there will be enough lawsuits to justify the value and economic impact of H1Bs and it will NOT go anywhere…So, don’t worry by reading the media reports…
What do you think on this ? What are your thoughts on the per country limits for H1Bs ?