The Trump administration plans to narrow the definition of specialty occupation to limit the use of H-1B visas, but it may be limited in how far it can go.
A proposal expected in January from the U.S. Citizenship and Immigration Services would refine the meaning of specialty occupation “to focus on obtaining the best and the brightest foreign nationals via the H-1B program.”
The proposed regulation “would be the biggest changes to the H-1B program since 1990,” when the visa was overhauled by Congress, Sarah Pierce, a policy analyst with the Migration Policy Institute, told Bloomberg Law.
The agency could block entry-level jobs from the program while redefining “employer-employee relationship” to severely curtail staffing companies’ access to the visas.
H-1B visas are popular in the tech industry but also are used for other professions such as medicine, accounting, and education. With some exceptions, the visas are capped at 65,000 per year, plus an additional 20,000 for foreign workers with a graduate degree from a U.S. college or university.
There may not be “a lot of wiggle room” for the USCIS to make changes because of how the temporary work visa is laid out in the law, Pierce said. “I’m very curious to see what they’re actually able to do with the regulation,” she said.
The proposal’s objectives are in line with President
But there are questions as to whether that really is the purpose of the visas.
“There are some pretty common occupations” that are considered “specialty occupations,” and “in some very heavily populated areas of the country” where it’s more likely that they compete with U.S. workers, Chris Chmielenski, deputy director of NumbersUSA, told Bloomberg Law.
The current regulations list “architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts” as examples of qualifying H-1B jobs.
“The Trump administration will probably look to do what it can within the confines of the law,” but “I’m almost certain that it will get challenged in court,” said Chmielenski, whose organization advocates for lower visa numbers.
“USCIS is committed to upholding our nation’s immigration laws, helping ensure they are faithfully carried out, and safeguarding the integrity of our immigration system designed to protect the wages and working conditions of U.S. workers,” agency spokesman Michael Bars said in a statement provided to Bloomberg Law. “As such, the administration has been relentlessly pursuing merit-based policy and regulatory immigration reforms, including a thorough review of employment based visa programs so they benefit the American people to the greatest extent possible,” he said.
Bars declined to comment specifically on the planned H-1B proposal.
About Bachelor’s Degree, Not ‘Best and Brightest’
H-1Bs are temporary visas for professionals in “specialty occupations.” The Immigration and Nationality Act defines the term as “theoretical and practical application of a body of specialized knowledge.” It also requires “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
“The statute has never been about the best and the brightest, and it wasn’t written in 1990 to be about the best and the brightest,” said Bruce Morrison, a former congressman from Connecticut who sponsored the House version of what would become the Immigration Act of 1990.
“It was about people with bachelor’s degrees,” he said.
“The best and the brightest were in the O-1 program,” Morrison, an immigration lawyer and lobbyist with the U.S. engineer group IEEE-USA, told Bloomberg Law. O-1 visas are for individuals with extraordinary ability or achievement.
Important for Economy
Just because H-1B visas aren’t for superstars doesn’t mean they aren’t an important part of the economy, immigration attorney Sandra Feist of Grell Feist in Minneapolis told Bloomberg Law. “We live in a global economy, and we want our companies to have access to the largest talent pool that they can,” she said.
The argument that H-1B visas are being used to displace U.S. workers isn’t “borne out by the facts,” Feist said.
Sponsoring a worker for an H-1B is “a super annoying process” that’s “always expensive” and “somewhat unpredictable,” and businesses wouldn’t do it if they could simply hire a U.S. worker instead, she said.
The “crux of the question” of whether H-1B workers are a threat to U.S. workers’ job prospects relates to their actual pay, Pierce said.
“We clearly need some sort of in-depth study” that examines what employers are actually paying H-1B workers, as compared with what they say in government filings, she said.
Target the Lottery
Another proposed rule would rework the annual H-1B lottery, which the USCIS has run for the past several years because demand for the visas has far outpaced supply. That could be another, more effective avenue for achieving the administration’s aims.
“There’s no reason the administration can’t set priorities with respect to the lottery,” Morrison said.
Instead of selecting petitions randomly, the USCIS could weed out outsourcing companies that hire large numbers of H-1B workers by giving preference to companies that aren’t H-1B dependent, he said.
The USCIS also could select H-1B petitions based on pay level or the prevailing wage bracket the DOL assigns to the occupation, Chmielenski said.
But it may be “short-sighted” to award H-1B visas according to pay level, Feist said. “What makes you high-paid is not what makes you valuable,” and selecting visa petitions in that manner would bar important professions like teachers and social workers from the program, she said.
Instead, the USCIS could put a limit on the number of petitions a single employer can put into the lottery, and then allow another round of petition filings if visas open up later, she said.
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