U.S. President Donald Trump. News reports had emerged that the U.S. has told India it was considering an H-1B visa cap for countries that had a data localisation policy. (Photographer: Andrew Harrer/Bloomberg)

U.S. Has No Plans To Impose H-1B Visa Cap, Says State Department Official

United States has no plans to impose H-1B visa caps for countries that force foreign companies to store data locally, according to a U.S. State Department official.

The Donald Trump administration's review of U.S. visa policy is "completely separate" from the ongoing discussions with India over data localisation, the official said.

The U.S. State Department spokesperson's remarks came after news reports emerged that the U.S. had told India it was considering a 10-15 percent limit on H-1B visas for countries that had a data localisation policy.

The H-1B visa is a non-immigrant visa that allows U.S. companies to employ foreign workers in speciality occupations that require theoretical or technical expertise.

"The Trump administration's Buy American Hire American Executive Order called for a broad review of US worker visa programmes, including the H-1B programme," the spokesperson said.

"This review is not targeted at a specific country and is completely separate from our ongoing discussions with India about the importance of ensuring the free flow of data across the borders," the spokesperson said. "The Trump administration has no plans to place caps on H-1B work visas for nations that force foreign companies to store data locally.”

Two years ago, U.S. President Trump signed the 'Buy American and Hire American' executive order, which seeks to create higher wages and employment rates for American workers and protect their economic interests by rigorously enforcing and administering U.S. immigration laws.

It directed the Department of Homeland Security, in coordination with other agencies, to advance policies to help ensure the H-1B visas are awarded to the most skilled or highest paid beneficiaries.

On Thursday, Ministry of External Affairs spokesperson Raveesh Kumar said no communication has been received on the H-1B visa cap issue from the U.S.

The reported threat by the Trump administration to limit the number of H-1B visas issued to technology professionals would need legislative changes by the Congress, legal experts in the U.S. believe.

Any such move by the U.S. would harm the country, said Rick Rossow of the Center for Strategic and International Studies think-tank. "The move limiting Indians' ability to use the H-1B programme would be a self-harming, short-sighted move for the U.S.," he said.

"India has been an incredible source of much-needed technology talent for the last generation. And workers coming to the United States under the H-1B programme are a crucial people-to-people bridge between our nations," Rossow said.

"The statute just doesn't give them any leeway to do that. They are going to have to look elsewhere for leverage," Lynden Melmeda, former chief counsel at US Citizenship and Immigration Services, told Forbes magazine.

Immigration attorney Cyrus Mehta said, "The Congress would have to amend the law to award fewer H-1B visas to India. The current law does not authorise the U.S. government to discriminate against a certain country within the annual H-1B limit.”

"It is very difficult for the administration to seek an amendment through the Congress given how polarised it is and that the two houses are controlled by different parties,” he added.

According to Alyssa Ayres of the Council on Foreign Relations think-tank, "Since the Congress sets the cap and it is in law (last revised in 2004), I don't get how the administration could just make this change.”

However, William Stock, a founding member of Klasko Immigration Law Partners, said that Trump might use his executive authority to implement such a move.

Stock said that Section 212 (f) of the Immigration and Nationality Act allows the president to define a category of foreign nationals and suspend their entry into the country if that entry is deemed to be detrimental to the interests of the U.S.

Bloomberg Quint

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