The Departments of Homeland Security and Labor announced new rules making H-1B visas harder to obtain. The move is the latest move to revise H-1B visas since late June, when President Trump issued a temporary ban on H-1B and other foreign-worker visas, a move he said was to protect the U.S. workforce during the coronavirus pandemic.
The changes consist of two new Interim Final Rules, or IFRs, issued by the two departments. The Department of Homeland Security’s new rule will modify the H-1B petition program and change how H-1B workers can be employed at third-party sites, and the Department of Labor’s new rule will change the green card process and increase prevailing wage levels for H-1B employees significantly.
Officials from the Department of Homeland Security estimate that the new changes will cut the number of new visas issued by at least one-third.
The new rules have bypassed the usual process for how rules are added by forgoing the typical period of comment from the public. The Department of Labor’s rule increasing wage levels for nonimmigrant workers, notably, went into effect immediately. According to workplace law firm Constangy, Brooks, Smith, & Prophete, the accelerated timeframe increases the likelihood the rules will be challenged in court and may be hit with injunctions if the Administration can’t convince a judge the usual procedure was bypassed for a good reason.
Employers seeking to hire an employee from a different country with an H-1B visa must now pay them “the higher of the prevailing wage or the actual page paid to other employees with similar experience and qualifications,” according to the Department of Labor.
Under the old rules, a boss employing an entry-level software developer in the Boston metropolitan area might have expected to pay them $76,523. With the increased prevailing wages contained in the Department of Labor’s rule that went into effect October 8, that same entry-level software developer’s expected wage would be $112,757 according to an analysis by Constangy.
“The U.S. Department of Labor is strengthening wage protections, addressing abuses in these visa programs, and ensuring American workers are not undercut by cheaper foreign labor,” said U.S. Secretary Eugene Scalia, in a statement.
“It’s essentially saying, for anyone who’s coming out of college, you’re going to have to be paying them the wage of someone who has, at least, three to four years of experience,” said Punam Rogers, a partner with Constangy. Rogers also pointed out that the dramatically increased wages for H-1B workers would make it substantially more difficult for smaller companies to hire or keep them on.
The rule from the Department of Homeland Security, which comes into effect December 7, will additionally require employers to demonstrate not just that the applicant holds typical credentials in terms of the job being applied to, but specific qualifications of at least a bachelor’s degree or equivalent. Additionally, workers with H-1B visas who work at third-party sites, for example an employer that contracts IT professionals to other businesses, will find the eligibility period of their visas decreased to one year.
“It is clear from the revisions that [United States Citizenship and Immigration Services] is particularly concerned about IT positions generally and staffing companies that provide workers to other recipient employers specifically,” said Rebecca Bernhard, a partner at Dorsey & Whitney, a law firm that specializes in international, immigration, and employment practices. “Many of the comments regarding the specific changes [to employee credentials] are directed at certain types of technical positions like software engineer.”
Visa-holding specialists like chemical engineers are unlikely to be affected, she said, while companies that contract out IT specialists may find it more difficult to secure international talent.
The rules are certain to be subject to legal challenges. On October 1, the National Association of Manufacturers claimed victory in the decision of NAM v. Department of Homeland Security to secure an injunction against an earlier temporary ban on H-1B visas. In a statement, NAM’s General Counsel Linda Kelly said the decision was “a temporary win” for manufacturers trying to compete with the rest of the world for talented employees.