After a spate of executive orders and changes across the past 6 months, on 6 October, the US Department of Homeland Security announced an interim final rule (IFR) that "strengthens the H-1B non-immigrant visa program to protect U.S. workers, restores integrity to the H-1B program and better guarantees that H-1B petitions are approved only for qualified beneficiaries and petitioners".
Essentially, the new H1-B regulations make it harder for companies to hire foreign skilled workers.
Why The Interim Final Rule?
The US Department of Homeland Security (DHS) has claims that the H1-B visa program has exceeded its mandate, for which it was instated initially. It argues that the visa program is working to the “to the detriment of US workers”, displacing American workers and leading "to reduced wages in a number of industries in the U.S. labor market and the stagnation of wages in certain occupations".
The goal of the Interim Final Rule is to protect American workers, making it harder to hire foreign workers.
“The Department of Homeland Security is honoured to take this important step toward putting Americans first and to continue to implement President Trump’s agenda to keep our economy secure", said Acting Secretary Chad Wolf.
What Are The Changes Proposed By The New Rule?
While the nitty-gritties of the new rule are likely to evolve over the coming few weeks, there are some broad stroke changes that will be introduced to the visa programme.
The new rule narrows the definition of “specialty occupation” when it comes to assessing applications. This will consequently make it harder for companies and agencies that employ H1-B workers to justify the hiring of a foreign worker, instead of hiring from the American pool of workers.
It will further limit the ability of an H1B employer to list multiple unrelated fields of study to qualify for a position. In the past, it has been alleged that H-1B work visa offers to foreign employees are “just on paper”, thereby allowing them to evade certain taxes while undercutting the jobs for eligible US workers.
The new rule requires companies to make “real” offers to “real employees,” by closing loopholes and preventing the displacement of the American worker.
The interim final rule also works to enhance the DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved. This may mean that in cases that the US Citizenship and Immigration Services (USCIS) is unable to visit a requested location or obtain the information requested, this may result in the revocation or denial of the H1B petition.
The exact enforcement policies will be announced and refined in the coming weeks.
When Does the Interim Final Rule Go Into Effect?
The IFR is set to take effect after 60 days of publication on 6 October 2020. This should be roughly around 5 December 2020.
Foregoing the traditional practice, the DHS is not allowing citizens to deliberate on the new rule before its implementation. The department said this was done to “ensure that employing H-1B workers will not worsen the economic crisis caused by COVID-19 and adversely affect wages and working conditions of similarly employed U.S. workers.”
How Will This Affect Indian Foreign Workers in The US?
The US administration issues 85,000 H-1B work permits in all, every year. Of these, 65,000 are for people with specialty occupations, while the remaining 20,000 are reserved for those foreign workers who have earned a masters or higher university degree from a US institution.
Indians have been the largest recipient of H1-B visas, making up 67% of the applicant pool in 2020 alone. Indian tech professionals have cornered about two thirds of such visas in the last five years.
Since the DHS has proposed to narrow down the definition of what would constitute a “specialty occupation”, it is likely that the 65,000 visas issued every year would be brought down, significantly reducing the number of Indian recipients of the visa programme.
What Do Democrats Have To Say About The IFR?
House Judiciary Committee Chairman Jerrold Nadler and Immigration and Citizenship Subcommittee Chair Zoe Lofgren, both Democrats, Thursday decried the move as “an attempt [by the Trump Administration] to score last minute political points” before the presidential election on 3 November.
“While this program can certainly benefit from reforms, our laws require that the public be provided with adequate notice and a meaningful opportunity to comment before such reforms are implemented,” Nadler was further quoted saying.
What Should One Expect Going Forward?
The acting DHS Secretary Chad Wolf, who had signed off on the new rule, is yet to be appointed officially. This may alter the actual implementation of the rule, since his appointment is not yet legally formalised.
Further, once the new rule is comprehensively ratified, it will be clearer whether it affects only fresh visa holders, or existing H1-B visa holders as well.
There is also speculation among experts that this rule may face possible lawsuits going forward. With no advance notice nor a chance for public rebuke makes the rule vulnerable.