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DHS Changes the H-1B Visa Cap Selection Process

DHS Changes the H-1B Visa Cap Selection Process

Written by Taher Kameli & Chathan Vemuri

In one of the final acts of the Trump Administration’s hardline anti-immigration policies prior to his departure on January 20, 2021, the Trump-led Department of Homeland Security issued a final rule that upends the traditional selection system for the H-1B visa in favor of highly paid workers, at the expense of those who make less.[1] Every fiscal year, the numerical limit on the number of foreign workers authorized for H-1B visa status is capped at 65,000 initial visas, with an additional 20,000 H-1B visas for workers with advanced US degrees.[2] But given the disproportionately higher demand for H-1B visas, a random lottery process has been used to limit the number of applicants.[3]

 

Nevertheless, under the new rule, the “’USCIS will rank and select registrations’ based on ‘the highest corresponding Occupational Employment Statistics (OES) wage level that the proffered wage will equal or exceed for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment.’”[4] As a result, the Final Rule would set preferences for highly paid H-1B workers for the purposes of sponsorship, while applications for wage levels lower than that would be not as likely chosen for H-1B status.[5] In order to determine who qualifies under the new rule, the USCIS will look the selected wage levels of the registrants and their specialties, rather than the proffered salary amount.[6]

 

As a result, this leaves employers wanting to sponsor entry-level H-1B workers with a tough choice between offering salaries that are above the standard entry-level wages for the position or not doing so, only to reduce the likelihood of their sponsored registrants selection for the H-1B visa.[7] This would reduce opportunities for H-1B registrants who recently graduated college, gearing the selection process only to those who are highly qualified in addition to a college degree, narrowing the pool of H-1B applicants and those successfully granted a visa.[1] This will be implemented for both the regular cap and advanced degree exemptions under the H-1B visa program.[2]

 

Furthermore, the USCIS justifies this Final Rule tightening the cap selection process as necessary to “prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.”[3] It also argues that such changes to the cap selection process would get employers to provide higher salaries and look to fill higher-skilled positions rather than what it claims to be an abuse of the system to fill entry level positions and cut costs.[4]

 

This mirrors the talking points of the previous Trump administration which has made many changes to the H-1B visa program to make it harder for employers to hire H-1B visa holders, pushing them to look to the domestic US workforce. It also reflects the Trump administration’s attempts to raise the barriers to immigration, favoring those applicants with the most skills and means, potentially leaving out large swathes of people.

 

However, given that this Final Rule formally published prior to end of the Trump administration yet has yet to take effect,[5] there may be respite for H-1B applicants overwhelmed by these stringent new requirements. The new Biden administration has put on hold all of the Trump administration’s recent published modifications to the H-1B visa rules.[6] As the Final Rule adjusting the cap selection process has been published but does not take effect until March 9th of 2021, H-1B applicants may breathe a sigh of relief as its implementation is postponed for 60 days.

 

Although, this does not mean it has been rescinded nor does it guarantee that it will be. Even the unpublished rules which will be subject to immediate withdrawal must first be subject to review and approval[7], again raising questions as to whether H-1B applicants are completely in the clear just yet.

 

Meanwhile, with the pressure the COVID-19 pandemic puts on the US economy and American workers, it is entirely conceivable that the Biden administration may retain some of Trump’s bans and restrictions to alleviate the pressure on the US workforce.[8] Recent initiatives of the new administration, such as the propose U.S. Citizenship Act of 2021 that would potentially legalize 10 to 20 million undocumented immigrants are an encouraging sign of the beginning of the dismantling restrictive immigration regimen of the Trump administration.[9] Yet the proposed Act’s incentivizing of higher wages for H-1B workers to prevent displacement of American workers already indicates that  President Biden may be thinking along these lines and may not undo the Trump administration’s H-1B changes just yet.[1]

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about the new Final Rule amending the H-1B cap selection process as well as the impact of the Biden administration’s changes on its potential enforcement.

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[1] Id.

[1] Id.

[2] USCIS Modifies H-1B Selection Process to Prioritize Wages, U.S.C.I.S. (Jan. 7, 2021) available at https://www.uscis.gov/news/news-releases/uscis-modifies-h-1b-selection-process-to-prioritize-wages

[3] Id.

[4] Id.

[5] 86 F.R. 1676 (It was published on January 8, 2021 but will take effect on March 9, 2021)

[6] Relief to Techies: Biden Puts Trump H-1B Rule to Hold, The Hindu (Business Line) (upd. Jan. 21, 2021) available at https://www.thehindubusinessline.com/news/world/joe-biden-to-reverse-trump-effort-to-subtract-immigrants-from-census/article33623321.ece

[7] Id.

[8] Samuels, Brett, Trump Extends Visa Restrictions Through March, The Hill (Dec. 31, 2020) available at https://thehill.com/homenews/administration/532275-trump-extends-visa-restrictions-through-march

[9] Maurer, Roy, President Biden’s Immigration Plan Legalizes Millions of Undocumented Workers, SHRM  (Jan. 20, 2021) available at https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/biden-immigration-plan-legalizes-millions-undocumented-workers.aspx

[1] Chow, Curtis Y., Depret-Bixio, Lee Gibbs, Garilas, James Nicholas, and Kerr, Ashley K., DHS Announces Significant Changes to H–1B Cap Selection Process, Nat’l Law Rev. vol. XI (Jan. 12, 2021) available at https://www.natlawreview.com/article/dhs-announces-significant-changes-to-h-1b-cap-selection-process

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.