What are the New Rules for the H-1B Visa Program? 

October 28, 2020

The U.S. Department of Labor’s H-1B program was created in 1990. It is a temporary visa category that allows companies to petition for educated, skilled foreign professionals to work in specialty occupations that need a bachelor’s degree. Categories that generally qualify include engineering, medical sciences, technology, and mathematics. The first stage of an initial H-1B classification was originally three years, and this could have been extended for another three years.

The program was designed to aid companies who were unable to obtain qualified U.S. workers. It provides a way to authorize temporary employment to people who are not authorized to work in this country. Through the program, employers have been able to procure qualified employees from other countries. H-1B also has standards in place to protect U.S. workers with similar qualifications from being adversely impacted, and standards to protect immigrant workers as well.

Trump’s Plan to Change the Program

Back in June, President Trump signed a proclamation to temporarily suspend the issuance of new visas. A preliminary injunction was filed against the proclamation, which was denied by a U.S. District Judge in September. Plaintiffs have continued the fight by appealing the decision. One firm representing Indian nationals filed a complaint, claiming that the ban hurts the United States economy, separates families, and defies Congress.

In early October, it was announced that there were two new H-1B rules issued by the U.S. Department of Homeland Security (DHS) and the Department of Labor. The main takeaways are as follows:

  • The definitions of specialty occupation and employee-employer relationship changed.
  • The validity of an H-1B visa has been limited to one year instead of the initial three years for tech workers placed at third-party workplaces.
  • There will be more workplace monitoring to ensure better compliance.
  • There are new limits on the number of specialty occupations available through the program.
  • The minimum wage levels at which employers can hire H-1B workers increased substantially. This is a way to discourage American companies from hiring foreign employees.

The acting Deputy DHS Secretary stated that approximately one-third of the immigrant workers who applied for these visas would be denied.

Have There Been More Developments?

Trump’s original proclamation to halt the entry of individuals holding H-1B permits until the year’s end was overthrown a few weeks back in a California courtroom, and another court blocked a planned increase in visa fees. Critics believe that the rules have bypassed the regular process, which may raise legal questions. The acting DHS Secretary said that economic security is homeland security, emphasizing the importance of putting American workers first. Forbes Magazine reported that the administration is rushing to publish these new H-1B rules to be in place should Trump lose the November election.

To expedite the changes, the new rules were enacted as an interim final rule without a public comment period. They are now slated to go into effect by the end of the year. The president of the Federation for American Immigration Reform said that once the rules are in place, it will be difficult for future administrations to change them. However, it is likely that there will be ongoing legal challenges to the new rules.

Possible Impacts of the New H-1B Rules

U.S. companies, tech firms, and foreign services and staffing firms may be impacted by the new rules, including those who place workers at third-party locations. Although tech companies hire employees at above-minimum wage levels, the significant wage increases could deter them from hiring out. Over the past few years, Indian nationals have gotten more than 70 percent of the issued H-1B visas, although this has been slowly changing over to tech companies, such as Google, Amazon, and Apple.

Going forward, employers will have to pay higher salaries to these workers and may find it harder to meet the qualifications for obtaining H-1B visas. There is also a belief that the new rules could be detrimental to solving the COVID-19 crisis by restricting access to talent.

The rules can also affect H-1B visa workers who are employed by one company and work at another jobsite. This situation is common for larger companies that contract with outside human resource and information technology providers. Those who rely on their H-1B visas to remain in the United States legally may have problems because of limits regarding their permanent residence status. They would have to renew their visas every year, which could end up costing their employers a lot of money.

The new rules will affect more than one-third of H-1B petitions, and a senior official said that the vast majority will be rejected as a statistical matter. This does not mean that every petition will be automatically rejected, though. However, anyone who is in the process of applying for a new H-1B visa or renewal could be impacted.

Could the New Rules Harm the Economy?

According to IT industry lobby, NASSCOM, these new changes have come at an unfortunate time. They claim that the United States is suffering from a deficit in science, technology, engineering, and mathematics (STEM) skills, and unemployment in the computer tech industry is an ongoing problem. The Economic Times also reported that non-immigrant high skilled workers are integral to bridging this gap in the United States. The new DHS rules will affect over one-third of H-1B petitions. Although that does not mean an automatic rejection of petitions, most of them will in fact be rejected just as a statistical matter, according to a senior department official.

Philadelphia Visa Petition Lawyers at the MC Law Group, LLC Help Clients with Visa Applications

Although anyone who is currently employed through a valid H-1B visa or files a petition by early December will not be immediately affected by the new rules, changes could be coming with long-lasting effects. For a free consultation regarding immigration issues, reach out to the Philadelphia visa petition lawyers at the MC Law Group, LLC. We will fight to protect your rights. Call us at 215-496-0690 or complete our online form today. Located in Philadelphia, we serve families throughout the tri-state area, including Pennsylvania, New Jersey, and nationwide.