Trump Administration Eviscerates the H-1B Program

H-1B Visas attorney

The Trump Administration has announced significant rule changes that restrict use of the H-1B visa program. The Department of Labor (DOL) and the Department of Homeland Security (DHS) issued two new interim final rules, which have bypassed normal regulatory procedures by forgoing the conventional public comment period.

The DOL’s new rule, which took effect upon publication in the Federal Register on October 8, 2020, alters the calculation of prevailing wage levels, thereby raising what the DOL considers prevailing wage for H-1B workers. Employers will now have to pay entry-level H-1B workers a higher wage, making it much harder for smaller companies who need critical skills sets in short supply to hire or keep highly skilled foreign workers.

Meanwhile, the DHS rule narrows the eligibility criteria for what constitutes a “specialty occupation.” Under the amended definition, all foreign workers are required to have a specific degree in the specialty occupation rather than any bachelor’s degree. There must be a direct link between the required degree field and the job duties of the H-1B position. General degrees, such as business or engineering, no longer qualify.

The DHS rule also changes the definitions of the employer-employee relationship and limiting the placement of H-1B workers at third-party worksites. The petition validity period for H-1B workers who will be placed at third-party sites will be limited to a maximum of one year, instead of a maximum of three years. The Department also stated that it will expand worksite inspections to ensure compliance with H-1B regulations.

The DHS rule will go into effect on December 7, 2020. Department officials expect the changes to reduce the number of new H-1B workers by at least a third annually.

Both the DOL and DHS rules are likely to face legal challenges in federal court. The Trump Administration has framed the changes as a way to protect American workers amid the coronavirus pandemic. But critics of the H-1B visa restrictions argue that the tighter rules only serve to expand the president’s anti-immigration agenda ahead of the upcoming 2020 elections. Business groups insist that the H-1B program is necessary to fill a small but critical shortage of highly skilled workers.