Updated: October 7, 2020 5:11:02 pm
Written by Zolan Kanno-Youngs and Miriam Jordan
The Trump administration on Tuesday announced significant changes to the H-1B visa program for high-skilled workers, substantially raising the wages that U.S. companies must pay foreign hires and narrowing eligibility criteria for applicants.
Top administration officials framed the changes as a way to protect American jobs during the coronavirus pandemic, even though the Trump administration first committed to overhauling 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 guard against the risk lower-cost foreign labor can pose to the well-being of U.S. workers,” Patrick Pizzella, the deputy secretary of labor, told reporters Tuesday.
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 Cuccinelli, the acting deputy secretary of homeland security, said he expected the changes to cut by one-third the number of petitions filed annually for the coveted visas.
The changes will be published this week as “interim final rules,” meaning that the agency believes it has “good cause” to claim exemption from the normal requirement to obtain feedback from the public before finalizing them.
Immigration lawyers and experts predicted that the changes would be swiftly challenged in court because they bypassed the normal regulatory process.
“The public hasn’t even seen these regulations yet and won’t have the usual opportunity to provide comments, as required by Congress,” said Doug Rand, a founder of Boundless Immigration, a technology company in Seattle that helps immigrants obtain green cards and citizenship. “Given the inevitability of court challenges, it seems like slim odds that these policies are built to last.”
The government issues 85,000 H-1B visas each year, often resorting to a lottery to award them because the number of workers sought by companies almost always surpasses 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 suggested that the changes, which came less than a month before the presidential election, were politically motivated.
“Why this, why now, and why is it an interim final rule?” asked Theresa Cardinal Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center. “There’s no estimate of the amount of jobs this would actually free up for U.S. workers. It’s a bank shot at best.”
The Labor Department rule, which takes effect upon publication, would increase wages across the board for foreign workers, based on surveys of salaries in each profession. Companies would have to pay entry-level workers in the program in the 45th percentile of their profession’s salary rather than the 17th percentile. Wages for higher-skilled workers would rise to the 95th percentile, up from the 67th percentile.
“It will also likely result in higher personnel costs for some employers,” according to the Labor Department rule. “The purpose of protecting U.S. workers outweighs such interests and justifies such 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 increasing the required wages, the new rules will harm all employers trying to hire foreign workers, but especially startup companies and smaller firms who may not be able to meet the increased wage requirements,” he said.
The Department of Homeland Security’s rule, which takes effect in 60 days, would also tighten the eligibility for visa applicants. The rule would require the foreign workers to have a degree in the “specialty occupation” they apply for, rather than any college degree. Some would also need to show how their studies provided “a body of highly specialized knowledge” for a potential job in the United States.
The largest share of H-1B visa holders are employed by the tech sector, where they work as computer engineers and software developers. However, the visas are also issued to architects, accountants and physicians, among a variety of professionals.
The rule will almost certainly have an adverse effect on rural hospitals and other health care providers that depend on a steady pipeline of physicians from abroad because they cannot attract enough American doctors, who generally prefer to practice in urban areas.
For example, instead of offering a minimum starting salary in the $120,000 to $130,000 range, a clinic in northeastern Pennsylvania, which is considered an underserved area, would have to pay a foreign physician around $195,000 or $200,000.
“Entry-level doctors in rural areas will have to be offered experienced-level wages, which may be more than their supervisor is being paid,” said William A. Stock, an employment immigration lawyer in Philadelphia. “This will further restrict the supply of doctors willing to move to parts of rural America. It will put providers in a jam that they can’t afford to hire foreign-born doctors.”
The H-1B rule comes on the heels of a proclamation signed by President Donald Trump in June that suspended an array of worker visas at least until Dec. 31. Groups representing thousands of businesses challenged that proclamation, which affected H-1Bs, H-2B seasonal work visas, L-1 visas for executives being transferred by companies and cultural-exchange J-1 visas, including au pairs.
The groups won a reprieve last week, when a federal judge ruled that Trump had overstepped his authority in banning the visas.
“There must be some measure of constraint on presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power,” the judge said.
His order is at odds with an earlier decision by a federal judge in Washington, D.C., which ensured that the ultimate determination would be made by an appeals court.
But it immediately set aside the ban for companies that employ large numbers of foreign workers.
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