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Statutes of Liberty: H-1B Hail Mary — Trump Administration Rushing Through Changes Before January

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Most inspiring comment last week: “This column is nerdy and niche AF.”

Our goal, this week, is to live up to those expectations. Fortunately for us, last week the Trump Administration issued a pair of regulations promulgated by the Department of Labor and the Department of Homeland Security concerning the H-1B visa program — two scoops of nerdy niche ice cream topped with litigation sprinkles. Let’s dive in!

TL/DR: The Trump administration is moving, in the last months of its term, to try to tighten the requirements for H-1B visas. We’ll tell you how the new requirements (might) work, and offer our prediction on whether the new requirements will ever take effect. Our prediction is that the new changes won’t stick.

First, a little lawsplainer. The H-1B visa is a temporary work visa available to foreign nationals who want to work in a “specialty occupation” job for which at least a bachelor’s degree is typically required. The U.S. corporation which hires the foreign worker must promise to pay (and actually pay) the worker a competitive wage, as determined by the Department of Labor or by a private wage survey.

About 85,000 H-1B visas are awarded each year, typically through the H-1B lottery each April. (For more info on that, see our prior column on the nuts and bolts of H-1Bs.) Many H-1B visaholders renew their visas and stay in H-1B status for up to six years; some of them then go on to apply for U.S. lawful permanent residency.

How might the new regulations change the landscape? In three ways:

  1. Increase the required wage rate. By making technical changes to the method by which prevailing wages are calculated, the Interim Final Rule increases the required wage rates for all H-1B visaholders. (Unlike the other changes described below, these increases are effective immediately.) The technical changes are complex, but the upshot is that required wages go up across the board — but most especially for entry-level employees.
  2. Tighten the definition of “specialty occupation”. The new regulation insists that a worker who wants a job in a specialty occupation must have a bachelor’s degree or higher which is directly related to the occupation in question. (We doubt that this will be a problem for the vast majority of H-1B beneficiaries, who tend to be computer scientists who majored in computer science.)
  3. Increase inspections. The new regulation clarifies that USCIS has the authority to conduct site visits before, during and after the approval of an H-1B petition, as well as expanding USCIS’s ability to conduct site visits at outside job placement locations.

Will these regulations take effect? We expect that they won’t survive judicial review, for nerdy and niche reasons. The Trump Administration chose to promulgate these changes as a final rule and as an interim final rule, respectively, rather than via a notice of proposed rulemaking.

In plain English, this is a regulatory rush job, designed to go into effect before January. The federal courts generally dislike this sort of move. Remember DHS v. Regents of University of California, in which Justice Roberts overturned the rescission of DACA because DHS didn’t do the regulatory work properly? We do. DHS does. Our prediction is that the federal judiciary will too, and both of these regulations will be quickly enjoined.

As always, we welcome your thoughts and comments and will do our best to respond.

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