WASHINGTON – The Trump administration on Tuesday announced major changes to the H-1B visa program for highly skilled workers, significantly increasing the wages US companies have to pay for foreign recruitment and restricting the eligibility criteria for applicants.
Senior government officials spelled the changes as a way to protect American jobs during the coronavirus pandemic, despite the Trump administration’s first commitment to revising the program in 2017 to reduce the number of foreigners employed in the U.S.
“With millions of Americans looking for work and the economy continuing to recover, immediate action is needed to address the risk that lower-cost foreign labor could harm the well-being of US workers,”
The rules will have a direct impact on foreign workers and employers, especially tech companies that have long supported the H-1B program and are deeply committed to expanding it.
Kenneth T. Cuccinelli, acting assistant secretary for homeland security, said he expected the changes would reduce the number of petitions filed annually for the coveted visas by a third.
The changes will be released this week as tentative final rules, meaning the agency believes it has “good reason” to request an exemption from the normal requirement in order to get feedback from the public before finalizing it will.
Immigration lawyers and experts predicted the changes would be quickly challenged in court as they bypassed the normal regulatory process.
“The public has not even seen these regulations and will not have the usual opportunity to comment as requested by Congress,” said Doug Rand, founder of Boundless Immigration, a Seattle technology company that helps immigrants get green cards and Citizenship. “Given the inevitability of legal challenges, there appears to be little chance that these guidelines will be designed to last.”
The government issues 85,000 H-1B visas each year, and often awards them through a lottery as the number of workers sought by companies almost always exceeds the number of visas available. Many workers end up being sponsored by their employers to keep green cards in the United States permanently.
Some critics suggested that the changes, which took place less than a month before the election, were politically motivated.
“Why this, why now, and why is it a tentative final rule?” said Theresa Cardinal Brown, the director of immigration and cross-border policies at the Bipartisan Policy Center. “There is no estimate of the number of jobs that would actually become available for US workers. It’s a bench shot at best. “
The Ministry of Labor rule, which comes into force upon publication, would wages for foreign workers across the board based on salary surveys in each occupation. Companies would have to pay newcomers to the program in the 45th percentile of their professional salary and not in the 17th percentile. The wages for more highly skilled workers would rise from the 67th percentile to the 95th percentile.
“It is also likely to lead to higher labor costs for some employers,” according to the Labor Department rule. “The purpose of protecting US workers outweighs such interests and justifies such increased costs,” the agency added.
However, Stephen Yale-Loehr, professor of immigration law at Cornell Law School, said the rule would have the opposite effect.
“By increasing the required wages, the new rules will harm all employers trying to recruit foreign workers, especially start-ups and smaller businesses that may not be able to meet the increased wage requirements,” he said .
The Department of Homeland Security’s rule, which comes into effect in 60 days, would also tighten the eligibility for visa applicants. The rule would require that the foreign workers have a degree in the “specialty” they are applying for and not a university degree. Some would also need to show how their studies provided “a highly specialized knowledge” for a potential job in the United States.
Most of the H-1B Visa holders are employed in the technology field, where they work as computer engineers and software developers. The visas are also issued to architects, accountants and doctors among various professionals.
The rule will almost certainly adversely affect rural hospitals and other health care providers that rely on steady numbers of overseas doctors as they cannot attract enough American doctors, who generally prefer to practice in urban areas.
For example, instead of offering a minimum starting salary in the range of $ 120,000 to $ 130,000, a clinic in northeast Pennsylvania that is considered underserved would have to pay a foreign doctor around $ 195,000 or $ 200,000.
“Entry-level doctors in rural areas must be offered experienced wages that may be higher than their manager is paying,” said William A. Stock, a Philadelphia immigration attorney. “This will further limit the number of doctors willing to move to parts of rural America. This will put providers in a traffic jam that they cannot afford to hire overseas-born doctors. “
The H-1B rule follows a proclamation signed by President Trump in June that suspended a number of worker visas until at least December 31st. Groups representing thousands of businesses challenged this proclamation that the H-1Bs, H-2B, covered seasonal work visas, L-1 executive visas transferred by business, and J-1 cultural exchange visas, including Au Pairs.
The groups gained a reprieve last week when a federal judge ruled that Mr. Trump had exceeded his authority in banning visas.
“There has to be some degree of curtailment of the president’s authority in the domestic sphere in order not to turn the executive branch into a fully monarchical power,” the judge said.
His order contradicted an earlier decision by a federal judge in Washington, DC, which ensured the final decision was made by an appeals court.
However, the ban on companies employing large numbers of foreign workers was immediately lifted.