A long-promised but thrice-delayed change to the H-1B visa program by the administration of President Donald Trump has been pushed ahead, but immigration lawyers are already predicting a legal fight.
The administration has been saying since 2017 that it would change the definition of what qualifies as a “specialty occupation” for the H-1B, a visa intended for skilled foreign workers that is often used as a pathway to a green card.
Now, the U.S. Department of Homeland Security has taken a concrete step forward, sending its proposed new rule to the White House’s Office of Management and Budget. The text is not yet available so details of how the administration is redefining specialty occupations are not clear. The agency’s abstract says only that it will revise the definition “to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.”
The new rule would also add requirements designed to make sure employers pay “appropriate wages” to H-1B workers, according to the abstract.
High-profile immigration law firm Fragomen said in a blog post Friday that the White House budget office has up to 90 days to review the proposed regulation, “but could take less time given the rule’s importance to the Trump administration.” The rule would then be published in the Federal Register, “and is expected to take effect immediately or shortly after publication,” Fragomen said. “The regulation is expected to be challenged in court.”
Another prominent immigration law firm, Berry Appleman & Leiden, said Friday in an emailed advisory that the government had indicated earlier there would be a public comment period before the rule was finalized, as is typical with federal rule-making. “The government is now expected to argue that compliance with the comment period obligations would be ‘impracticable, unnecessary, or contrary to the public interest,’” the firm said.
“The government may also argue that good cause exists to make the regulation effective upon publication and without the standard 30-day delayed effective date.” Berry Appleman & Leiden also predicted that the rule, if finalized, would end up in court.
The H-1B, used heavily by the Silicon Valley technology industry, whose major firms push for an increase to the annual 85,000 cap on new visas, has become a target for the Trump administration, which has dramatically increased denials for outsourcing, consulting and staffing companies. Critics allege that those companies, along with big tech firms employing contracted H-1B labor, use the visa to drive down wages, supplant U.S. workers and facilitate outsourcing. Current regulations allow companies to pay H-1B workers less than the prevailing wage. The tech giants argue that the visa is an essential tool for securing the world’s top talent. The staffing, consulting and outsourcing companies say they’re providing needed skilled foreign labor.
Andrew Greenfield, a partner at Fragomen, said Friday in an emailed advisory that he expects the H-1B rule change to focus on placement of foreign workers at third-party sites, an employment model dominated by the staffing, consulting and outsourcing companies that have been a target for the Trump administration.
“We also expect it to address H-1B wages and a new method of allocation of H-1B cap numbers to give priority to the highest-paid beneficiaries,” Greenfield said.
In various versions of the proposed rule’s abstract, posted twice a year, Homeland Security has said the changes are expected to reduce H-1B fraud and abuse, ensure the visa is only given out for appropriately specialized jobs, and that it “supplements the U.S. workforce and strengthens U.S. worker protections.” The new rule would also enhance effective management and monitoring of the program, the agency has said.
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