WASHINGTON – The Trump administration announced on Tuesday significant changes to the H-1B visa program for highly skilled workers, substantially increasing the wages US companies have to pay for foreign employees and tightening eligibility criteria for applicants.
Senior administration officials have framed the changes as a way to protect American jobs during the coronavirus pandemic, even though the Trump administration first pledged to review the program in 2017 as part of its efforts. to reduce the number of foreign nationals employed in the United States.
“With millions of Americans looking for work, and as the economy continues its recovery, immediate action is needed to protect against the risk that cheap foreign labor can pose to the well-being of US workers,”
The rules will directly affect foreign workers and employers, especially tech companies that have long supported the H-1B program and pushed hard for its expansion.
Kenneth T. Cuccinelli, deputy secretary of national security, said he expected the changes to reduce the number of petitions filed annually for the visa fields by a third.
The changes will be released this week as interim final rules, which means the agency believes it has “good reason” to seek exemption from the normal requirement of obtaining public feedback before finalizing them.
Lawyers and immigration experts predicted that the changes would quickly be challenged in court because they bypassed the normal regulatory process.
“The public has not yet seen these regulations and will not have the usual opportunity to comment as required by Congress,” said Doug Rand, founder of Boundless Immigration, a Seattle-based tech company that helps immigrants obtain green cards and citizenship. “Given the inevitability of judicial challenges, it appears the odds that these policies are built to last are slim.”
The government issues 85,000 H-1B visas every year, often using a lottery to award them because the number of workers sought by companies almost always exceeds the number of available visas. Many workers are eventually sponsored by their employers for green cards to remain permanently in the United States.
Some critics have suggested that the changes, which occurred less than a month before the election, were politically motivated.
“Why this, why now, and why is it a provisional final rule?” said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center. “There is no estimate of the amount of jobs this would actually make available to US workers. At best it’s a bankruptcy.”
The Department of Labor rule, which takes effect after publication, would raise wages across the board for foreign workers, based on payroll surveys in each profession. Companies should pay entry-level workers in the program in the 45th percentile of their profession’s salary rather than the 17th percentile. Wages for the most skilled workers would rise to the 95th percentile from the 67th percentile.
“It will also likely result in increased personnel costs for some employers,” according to the Department of Labor rule. “The purpose of protecting US workers outweighs these interests and justifies these increased costs,” the agency added.
But Stephen Yale-Loehr, a professor of immigration law at Cornell Law School, said the rule would have the opposite effect.
“By raising required wages, the new rules will harm all employers attempting to hire foreign workers, but especially start-ups and smaller businesses that may not be able to meet the increased wage requirements,” he said.
The Homeland Security Department’s rule, which will take effect in 60 days, would also strengthen eligibility for visa applicants. The rule would require foreign workers to have a degree in the “specialty profession” they are applying for, rather than any university degree. Some would also need to show how their studies provided “a highly specialized body of knowledge” for potential work in the United States.
The largest share of H-1B visa holders are employed by the technology sector, where they work as computer engineers and software developers. Visas are also issued to architects, accountants and doctors, among a variety of professionals.
The rule will almost certainly have a negative effect on rural hospitals and other health care providers who depend on a steady stream of doctors from abroad because they can’t attract enough American doctors, who generally prefer to practice in urban areas.
For example, instead of offering a starting minimum salary of between $ 120,000 and $ 130,000, a clinic in northeastern Pennsylvania, which is considered a disadvantaged area, would have to pay a foreign doctor about $ 195,000 or $ 200,000.
“Entry-level doctors in rural areas will need to be offered expert-level salaries, which may be more than what their supervisor is paid,” said William A. Stock, a professional immigration attorney in Philadelphia. “This will further limit the supply of doctors willing to relocate to parts of rural America. It will put suppliers in a jam that they cannot afford to hire foreign-born doctors. “
The H-1B rule comes in the wake of a proclamation signed by President Trump in June that suspended a series of worker visas until at least December 31. Groups representing thousands of companies contested this proclamation, which affected H-1B, H-2B seasonal work visas, L-1 visas for corporate transferees and J-1 cultural exchange visas, including au pairs.
The groups got a truce last week when a federal judge ruled that Trump had overstepped his authority to ban visas.
“There must be some measure of constraint to presidential authority in the domestic sphere in order not to make the executive a wholly monarchical power,” the judge said.
His order was contrary to a previous decision by a federal judge in Washington, DC, which guaranteed that the final decision would be made by an appeals court.
But he immediately lifted the ban on companies employing large numbers of foreign workers.