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:
- 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.
- 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.)
- 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.
As Arlington County continues collecting feedback on the preliminary concept plan to turn Langston Blvd into a “Green Main Street” over several decades, a few disagreements have emerged. Some say…
RSVP to learn about the Forestry and Natural Resources Plan during the virtual open house tomorrow at 7 p.m.
Within the first five minutes of Netflix’s new series Partner Track, Arlington native and Yorktown High School graduate Alexandra Turshen already has her “boss” moment by telling the new paralegal…
The Arlington Art Truck is back this fall starting October 1 with an exhibit focused on Arlington’s birds.
Now you can have fun with your family and friends when deciding where to eat!
Just hop aboard The Lunch Train and set the destination for: breakfast, brunch, lunch, dinner, or nightlife!
– No app necessary. Simply go to the website if you’d like!
– No account necessary
– Use your current location or a desired location
– Add restaurants you’re interested in, invite your friends, and play the game!
Lyon Park & Ashton Heights’ biennial home & garden biennial tour is back. The tour will include contemporary custom homes, older historic bungalows as well as renovated properties. One of the stunning homes on the tour is pictured above. In addition to beautiful & unique homes, the Villa & Vistas ’22 event will conclude with a festive reception at the Lyon Park Community Center at 414 N Fillmore Street, Arlington VA 22201. What could be better right?
All proceeds from this event will go to the Lyon Park Citizens Association (LPCA) towards our neighborhood jewel & hub, the Lyon Park Community Center (LPCC).
When: Sunday, October 2nd, Noon – 4 PM.
Where: Meet to get your tickets and the tour map at the Lyon Park Community Center (414 N Fillmore Street) We will have a table with information outside.
Are you ready to jump into homeownership or started considering it but don’t know where to start? Financial preparation is key when thinking about purchasing your first home and the first step to getting pre-approved. Join ACFCU for our Homebuying