‘Indian aspirants may face potential delays in US’

US President Donald Trump’s first three days triggered serious discussions on his crackdown on illegal immigration, his supportive stand for the H1B program and the birthright citizenship cancellation order. Trump has cancelled Birthright citizenship for children born in the US which implies that those children will not automatically become US citizens. That is a bigger worry for H1B holders. Speaking exclusively to The Perfect Voice, Mumbai-based Overseas Education and Visa Consultant Karan Gupta, who has over 20 years of experience in the field, has simplified and explained the impact that Trump’s stand on H1B program & Birthright citizenship cancellation order can have on Indians.

What is the H-1B program?

The H-1B program is a non-immigrant visa in the United States that allows employers to hire foreign workers in specialty occupations requiring specialized knowledge and a bachelor's degree or higher. These occupations often include fields like IT, engineering, mathematics, and science. The visa is typically granted for three years, with the possibility of extension up to six years. There is an annual cap of 65,000 visas, with an additional 20,000 reserved for individuals holding advanced degrees from US institutions.

What will be the impact of Trump assuming office in the US on Indians who aspire to apply for H-1B visas?

President Donald Trump's return to office has reignited concerns among Indian professionals regarding potential changes to the H-1B visa program. During his previous tenure, the administration implemented policies that increased scrutiny on H-1B applications, leading to higher denial rates. For instance, denial rates for H-1B applications spiked during Trump's first term due to restrictive policies, peaking at 24% in FY 2018. However, recent years have seen approval rates improve, with a denial rate of just 2.5% in FY 2024. Indian applicants, who constitute a significant portion of H-1B beneficiaries, may face heightened competition and uncertainty under stricter regulations.

US Secretary of State Marco Rubio flagged the concern of illegal migration of Indians to the USA. Approximately how many Indians try to cross over illegally every year?

While exact annual figures are hard to guess, it's estimated that there are approximately 220,000 illegal Indian immigrants residing in the U.S. as of 2022.

Has India agreed to assist the US in identification and deportation of illegally migrated Indians from the US?

Yes, the Indian government has shown a willingness to cooperate with the U.S. in addressing illegal immigration. Recently, India offered to repatriate 18,000 Indian nationals residing illegally in the U.S. This move aims to strengthen bilateral relations and safeguard legal immigration avenues, such as the H-1B program, which is vital for skilled Indian workers.

I personally agree with the US and India’s decision to deport and accept illegal immigrants. Illegal immigrants make it harder for legitimate students to stay back and find employment in the US.

Approximately how many Indians apply for H-1B visas per year? Approximately how many H-1B applicants successfully travel to the US every year?

Indians are the largest beneficiaries of the H-1B program. In recent years, they have accounted for approximately 70-75% of the total H-1B visas issued. Given the annual cap of 65,000 visas (plus 20,000 for advanced degree holders), this translates to roughly 60,000 to 70,000 H-1B visas granted to Indian nationals each year. However, the number of applications far exceeds the cap, leading to a lottery system to determine recipients.

Do H-1B visa holders pay taxes in the US?

Yes, H-1B visa holders are required to pay U.S. taxes. They are subject to the same tax laws as U.S. citizens, which include:

Federal Income Tax: Based on taxable income

State and Local Income Taxes: Depending on the state of residence

Social Security and Medicare Taxes: Typically withheld from paychecks

H-1B workers must file annual tax returns and may be eligible for certain deductions and credits.

Does the US generate revenue from H-1B visas? Can you explain the calculations?

Yes, the U.S. government generates revenue through the various fees associated with the H-1B visa process. For each application, employers may pay between $1,710 to $8,960, depending on company size and optional services like premium processing. With tens of thousands of applications annually, this results in substantial revenue. For instance, in FY 2024, there were 563,272 Labor Condition Applications filed, indicating significant fee collections.

How much are H-1B visa holders paid in the US approximately?

Salaries for H-1B visa holders vary widely based on industry, occupation, experience, and location. However, data indicates that in FY 2019, 78% of employers offered wages to H-1B workers that were higher than the prevailing wage for their specific job. In general, candidates make at a minimum $60,000 per year.

Are H1B visas of mutual benefit to both India and US?

The H-1B visa program is integral to the U.S. tech industry, enabling companies to fill specialized roles that often require advanced technical skills. A significant portion of H-1B visa holders are from India, contributing substantially to sectors like technology and healthcare. Restricting the H-1B program could lead to talent shortages, potentially hindering innovation and growth in these industries. This interdependence suggests that while Indian professionals benefit from opportunities in the U.S., American industries equally rely on this talent pool to maintain their competitive edge.

How was the situation under Biden’s rule? How is the situation going to be for Indians who aspire to settle in the US?

Under President Biden, there was a more favorable stance toward immigration, including the H-1B program. Efforts were made to streamline visa processes and reduce backlogs, benefiting Indian professionals seeking opportunities in the U.S. With the recent policy shifts under President Trump, there is increased uncertainty. Indian aspirants may face stricter regulations and potential delays, making the immigration landscape more challenging.

EAM Jaishankar said that he flagged a concern with Rubio about the visa application delays which the US needs to work on. Your views.

There are no visa delays for qualified students who want to study in the US. The delays still exist for tourist and business visas.

President Donald Trump has declared that unless at least one parent of a new-born in the US is an American citizen or a green card holder, the child will not be an American citizen—a right that all those born in the US have enjoyed for much of the country’s history.

As far as Trump’s order on birthright citizenship is concerned, will all children born to Indian-origin parents after the order is executed not get citizenship?

If enforced, the executive order would mean that children born in the U.S. to parents who are neither citizens nor lawful permanent residents (green card holders) would not automatically receive U.S. citizenship. This would affect children of Indian-origin parents on temporary visas, such as H-1B or student visas, potentially leaving these children without any citizenship if they do not acquire their parents' nationality.

How viable is this order? Should Indians staying in the US on different visas be worried?

The executive order has already faced legal challenges, with a federal judge in Seattle temporarily blocking its enforcement, calling it "blatantly unconstitutional”. Given the strong legal precedents supporting birthright citizenship under the 14th Amendment, many legal experts believe the order may ultimately be struck down. However, until a final legal resolution is reached, individuals on temporary visas should stay informed and consult with immigration experts to understand potential implications.

Keep in mind that most countries in the world do not offer citizenship just because a child is born there. Even India does not offer citizenship unless at least one parent is Indian.

What impact will this have on those on temporary visa status in the US?

Individuals on temporary visas, such as H-1B, L-1, F-1, J-1, and B1/B2, could be directly affected. If the order is enforced, their U.S.-born children would not automatically receive citizenship, potentially leading to legal uncertainties and challenges regarding the child's status and rights within the U.S.

What are the circumstances in which this order will be implemented or scrapped?

The viability of Trump's executive order depends on several legal and constitutional factors. The primary challenge to the order is based on the 14th Amendment to the U.S. Constitution, which grants birthright citizenship to anyone born on U.S. soil, regardless of the immigration status of their parents.

If the courts find the executive order unconstitutional, they are likely to issue an injunction, temporarily halting its implementation until a final ruling is made. Legal proceedings could take months or even years, especially if the case reaches the Supreme Court, which has the ultimate authority to determine the constitutionality of the order.

Could you possibly point out the reasons behind this sudden drastic step taken by Trump regarding birthright visas?

Trump’s stance on birthright citizenship aligns with his broader immigration policy, which has consistently focused on restricting immigration and tightening border security. Some possible reasons for this sudden move include:

Political Strategy for Elections: Immigration has been a key talking point in Trump’s campaigns, and taking a hard-line stance may appeal to his base, particularly in the lead-up to elections.

Curbing ‘Birth Tourism’ and Illegal Immigration: Trump has frequently cited concerns that foreign nationals travel to the U.S. to give birth, securing automatic citizenship for their children (a practice known as ‘birth tourism’).

This step is aimed at discouraging such practices and tightening perceived loopholes in the immigration system.

While the executive order faces significant legal hurdles, its broader implications underscore the ongoing debate over immigration policy in the U.S.