The Department of Homeland Security’s new proposed rule to select H-1B registrations based on higher wage levels rather than via a random lottery selection process makes it clear that the Trump administration intends to continue pounding employers hiring H-1B workers. The proposal is not likely to result in longer-term benefits to the U.S. economy, practitioners say, and may instead make it harder for employers to hire the technical talent they need.
U.S. Citizenship and Immigration Services said it generally would first select registrations based on the highest Occupational Employment Statistics prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment. DHS believes such a process “would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.”
Although the proposed rule would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, it would not change the order of selection between the two as established by the H-1B registration requirement final rule. The wage level ranking would occur first for the regular cap selection and then for the advanced degree exemption.
A DHS statement said that the current use of random selection to allocate H-1B visas “makes it harder for businesses to plan their hiring, fails to leverage the H-1B program to truly compete for the world’s best and brightest, and hurts American workers by bringing in relatively lower-paid foreign labor at the expense of the American workforce.” Practitioners note, however, that cutting the visas available and raising the required wages and standards to unreasonable levels may satisfy a short-term desire to favor domestic applicants, but the end result will be that U.S. businesses will not be getting the “best and brightest” tech employees, and the rule could effectively reduce the numbers of H-1B workers and tech workers generally that employers can afford to hire. They may end up hiring foreign workers overseas for lower pay, and not hiring the workers they need in the United States.
The proposed rule, if implemented, could also have a negative impact on foreign students in the United States who may seek entry-level positions elsewhere. Entry-level positions in biotechnology and pharmaceutical companies could be affected in addition to technology companies along with a variety of research and development positions.
Comments are due within 30 days of November 2, 2020, on the proposed rule, and within 60 days on the proposed information collection.
Litigation is expected. Stay tuned.
Contact your WR attorney for advice in specific situations.
- DHS proposed rule, https://www.govinfo.gov/content/pkg/FR-2020-11-02/pdf/2020-24259.pdf
- USCIS statement, https://www.uscis.gov/news/news-releases/dhs-trump-administration-protect-american-jobs-from-unfair-international-competition
- “H-1B Lottery Proposal Floats Higher Wage-Based Selections,” Bloomberg Law, https://news.bloomberglaw.com/daily-labor-report/dhs-proposes-wage-based-selection-process-for-h-1b-visa-lottery
“Department of Homeland Security to Abandon H-1B Visa Lottery for Salary Rankings,” Forbes, https://www.forbes.com/sites/andyjsemotiuk/2020/10/28/department-of-homeland-security-to-abandon-h1b-visa-lottery-for-salary-rankings/?sh=1f50e3c92c8b