Administration Continues its Attacks on the H-1B Visa Program

UPDATE:  The Administration published the proposed rule on November 2, 2020.

The administration announced the imminent publication of a proposed rule disrupting the H-1B visa petition process for employers seeking to employ foreign-born professional individuals in specialty occupations.

There is no question that the H-1B system is seriously flawed, largely stemming  from Congress, decades ago, setting unrealistically low annual caps of 65,000 H-1B visas for those with bachelors degrees, plus 20,000 visas for those with at least a masters degree.   Typically, each year, employers file cap-subject petitions far exceeding the number of H-1B visas allowed under the cap.  For FY 2021, the administration received H-1B registrations for more than 274,000 positions.

In response, USCIS established a lottery system to select which employers’ petitions would be processed under the cap.  The proposed rule would replace the lottery with a selection process based on salary, favoring the highest salaried positions.  The administration itself estimates that at least 45% of positions for which employers sought H-1B visas for FY 2021 would not qualify to be selected had the proposed rule’s terms already been in effect.

This proposed change follows an October 8, 2020 interim final rule that took immediate effect which compels employers to pay higher wages to their H-1B employees, in many cases far exceeding the prevailing wage for the job when offered regardless of immigration status.

Coupled with the new final rule, the proposed rule will ensure that industries or sectors that require specialized knowledge but in fields that pay less than other industries will be unable to get H-1B visas for talented foreign born professionals.  Many of these individuals obtained their higher education in the U.S. and may have already started working for their employers while they were international students.  Recent international higher education graduates generally, who typically are paid less than employees with years of work experience, will likely be shut out of H-1B eligibility.

This Forbes analysis provides more details about the proposed rule and its potential to damage the U.S.’s ability to attract foreign students and talented foreign workers, to the detriment of the economy.

Public comments are due on or before December 2, 2020.  MeBIC will submit a comment opposing this proposed rule.