Trump’s New Final Rule for the H-1B Visa and How It Helps Stifle Work-Based Immigration

Written by Taher Kameli & Chathan Vemuri

 

A recurring talking point from the Trump Administration has been that “illegal immigrants” allegedly steal jobs from American workers.[1] He has consistently tried to link illegal immigration (however tenuously) to detrimental changes in the U.S. by pointing to the performance of the U.S. economy and the job market.[2] In the early days of his campaign, he was very clear that, in his view as well as that of his supporters, immigrants were “taking our jobs…our manufacturing jobs…[and] our money.”[3] Since taking office in 2017, he has put forward policies to do just that, decrease immigration and “save the American worker.”[4] He promised to increase the number of the U.S. Border Patrol Agents by 26,370 from less than 20,000 as it was before his presidency, though to be perfectly honest, it was already steadily increasing in previous years under the Clinton, Bush II and Obama presidencies.[5] Trump has already started building and making progress on his proposed “Border Wall” built to keep Latin American immigrants out of the country.[6] Most cruelly, his Presidency has separated children of purported illegal immigrants (including asylum seekers) from their families and shipped them miles away from their parents across 100 migrant detention centers call Office of Refugee Resettlement shelters (ORR) and other care arrangements all across the country.[7] As with the increases to the Border Patrol force, this was also an exacerbation of a policy already started under the Obama Administration.[8] So far, Trump’s anti-immigration policies have either made minimal progress or they have continued and exacerbated policies started by previous administrations. Yet this Presidency has gone even further in its hardline policies meant to curb immigration with its latest course of action.

This week, the Trump Administration announced a Final Rule to H-1B visa program for immigrant workers which will take effect in 60 days from the date of announcement[1] and which has been called “one of the most significant reforms made to the H-1B program in the past 20 years.”[2] These new rules, which are stricter than before, are designed specifically to discourage employers from hiring immigrant employees as opposed to employees who are citizens.[3] Under the new rules, wages that companies must pay to foreign new employees are substantially raised so as to discourage employers from hiring immigrant employees and workers.[4] This would especially hit start-up companies and smaller firms the hardest as they would not be able to meet the increased wage requirements.[5] Furthermore, the new rules would  narrow the eligibility criterion for visa applicants as they would be required “to have a degree in the ‘specialty occupation’ that they apply for, rather than any college degree.”[6] Some applicants would even have to show how their education “provided ‘a body of highly specialized knowledge’ for a potential job in the United States.”[7]

Top officials for the Trump Administration have justified these changes as necessary changes to safeguard American jobs during the COVID-19 pandemic, even though they were already under consideration as part of Trump’s efforts to overhaul the program as far back as 2017.[8] Already back in June of 2020, President Trump signed a proclamation that suspended a considerable number of H-1B visas until at least December 31st of 2020.[9] The Acting Deputy Secretary of Homeland Security, Kenneth T. Cuccinelli, has stated that he “expected the changes to cut by one-third the number of petitions filed annually for the…visas.”[10] Given the changes described above, it may very well do that and more. The largest number of H-1B visa holders are employees of the tech sector, “where they work as computer engineers and software developers.”[11] These visas are also issued to a variety of professionals, including physicians.[12] This would spell trouble for rural hospitals and other health care providers that rely on immigrant physicians due to failing to attract American ones, who prefer to work in the cities.[13] Enforcing these Final Rule would strain the resources of rural healthcare providers and hospitals as they will not be able to afford to pay immigrant physicians the required increased amounts of around $200,000 or more, thereby discouraging immigrant physicians from coming to apply to those hospitals, leaving them understaffed.[1] The new Final Rule would also “increase scrutiny for third-party outsourcing companies that rely on hiring H-1B workers.”[2] Most significantly, it would narrow the kinds of jobs H-1B visa holders can be hired for, thereby potentially fulfilling Acting Deputy Secretary of the DHS Kenneth Cuccinelli’s prediction that the Final Rule would H-1B visa applications by one third.[3]

Yet these changes will not go unchallenged. Immigration lawyers already expect that these rules will be challenged in court very soon due their being published as a Final Rule rather than a proposed rule subject to public notice and comment.[4] Considering that “the public hasn’t even seen these regulations yet and [would not] have the…opportunity to provide comments, as required by Congress,” bypassing the proper regulatory process.[5] Already several groups representing businesses challenged President Trump’s June proclamation suspending a number of immigrant visas including but not limited to H-1B visas, winning a victory last week when a U.S. Court blocked Trump’s June Proclamation, while another court blocked a proposed increase in visa fees only days before they were to come into effect.[6] By having a potentially severe impact on the tech industry which relies on employing immigrants, this could potentially also impact relations with nations important for US strategic interests such as India, given that Indian nationals have received over 70% of the H-1B visas issued over the last few years.[7] So the implications of this Final Rule not only potentially cause problems at home but also abroad as well.

It’s too early to say for sure what the public reaction will be to this Final Rule, given they don’t go into effect for almost two months. But the clear negative implications they have on key industries reliant on foreign immigrant employees such as the tech and medical professions, as well as the irregular and potentially illegal manner in which the Final Rule was passed, already suggests this will be one of the most challenged and criticized of Trump’s many controversial and problematic immigration policies. Given that it comes only a month before the General Election, it may serve as a tool to rally Trump’s base based on his seeming to fulfill his promise of curbing immigration and stopping immigrants from allegedly “stealing American jobs.” But it could also very well backfire as it may arouse the ire of enough important industries and their members who, along with those outraged at Trump’s poor handling of the coronavirus pandemic, may have finally had enough with the Trump Administration’s policies and their effect on the economy, rule of law and internal welfare.

[1] Id.

[2] Stef W. Kight, Trump Administration Announces New H-1B Visa Restrictions, Axios (Oct. 6, 2020) available at https://www.axios.com/trump-new-h-1b-visa-restrictions-0b6f023f-aafc-4595-883d-de7865d84b1e.html

[3] Id.

[4] Nick Miroff, Trump Administration Says It Will Further Tighten Rules for Foreign Workers Using H-1B Visas, Wash. Post (Oct. 6, 2020, 4:55 PM) available at https://www.washingtonpost.com/immigration/trump-tightens-h1b-visas/2020/10/06/0035905e-0805-11eb-991c-be6ead8c4018_story.html

[5] Stef W. Kight, Trump Administration Announces New H-1B Visa Restrictions, Axios (Oct. 6, 2020) available at https://www.axios.com/trump-new-h-1b-visa-restrictions-0b6f023f-aafc-4595-883d-de7865d84b1e.html (quoting Doug Rand, a founder of Boundless Immigration, which is a Seattle-based tech company that helps immigrants obtain green cards and citizenship.)

[6] Priyanka Sangani, US Visa: Two New Rules Make It Harder for Firms to Hire H-1B Workers, Economic Times (Oct. 8, 2020 12:58 PM IST) available at https://economictimes.indiatimes.com/nri/visa-and-immigration/donald-trump-turns-the-knife-in-h1b-workers-say-deja-vu/articleshow/78526154.cms

[7] Id.

[1] Zolan Kanno-Youngs and Miriam Jordan, Trump Moves to Tighten Visa Access for High-Skilled Foreign Workers, N.Y. Times (Oct. 6, 2020) available at https://www.nytimes.com/2020/10/06/us/politics/h1b-visas-foreign-workers-trump.html

[2] Stef W. Kight, Trump Administration Announces New H-1B Visa Restrictions, Axios (Oct. 6, 2020) available at https://www.axios.com/trump-new-h-1b-visa-restrictions-0b6f023f-aafc-4595-883d-de7865d84b1e.html

[3] Zolan Kanno-Youngs and Miriam Jordan, Trump Moves to Tighten Visa Access for High-Skilled Foreign Workers, N.Y. Times (Oct. 6, 2020) available at https://www.nytimes.com/2020/10/06/us/politics/h1b-visas-foreign-workers-trump.html

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[1] Brennan Hoban, Do Immigrants “Steal” Jobs from American Workers?, Brookings (Aug. 24, 2017) available at https://www.brookings.edu/blog/brookings-now/2017/08/24/do-immigrants-steal-jobs-from-american-workers/

[2] Id.

[3] Id.

[4] Id.

[5] Id. (Prior to Trump’s presidency, the biggest increases yet to the Border Patrol were under Barack Obama’s Administration – see chart in the article).

[6] Nick Miroff and Adrian Blanco, Trump Ramps Up Border-Wall Construction Ahead of 2020 Vote, Wash. Post (Feb. 6, 2020) available at https://www.washingtonpost.com/graphics/2020/national/immigration/border-wall-progress/

[7] Family Separation Under the Trump Administration – A Timeline, Southern Poverty Law Center (Jun. 17, 2020) available at https://www.splcenter.org/news/2020/06/17/family-separation-under-trump-administration-timeline

[8] AP Fact Check: Michelle Obama and the Kids in ‘Cages’, Assoc. Press (Aug. 18, 2020) available at https://www.usnews.com/news/politics/articles/2020-08-18/ap-fact-check-michelle-obama-and-the-kids-in-cages