Trump administration to impose new rules targeting H-1B visas

Trump administration to impose new rules targeting H-1B visas

Originally Published in The Hill

Brett Samuels and Alex Gangitano - October 6, 2020

The Trump administration announced additional immigration reforms on Tuesday aimed at making it more difficult for skilled foreign workers to acquire visas.

The changes are the latest effort by the Trump administration in recent months to crack down on the use of visas as part of its broader attempt to limit the flow of foreign workers.

The Department of Homeland Security (DHS) is expected to publish regulations targeting H-1B visas that are granted to skilled workers and are common in the tech industry. Recipients can typically stay in the United States for multiple years.

The rules, which will go into effect in 60 days, would heighten requirements for businesses that hire foreign workers on H-1B visas, according to details reviewed by The Hill. The changes may be challenged in court.

The updated regulations redefine "specialty occupations," limit the validity of an H-1B visa to one year for a worker placed at a third-party worksite, and increase enforcement tools to police companies that do not abide by H-1B rules or cooperate with site visits.

“We have entered an era in which economic security is an integral part of homeland security. Put simply, economic security is homeland security,” acting DHS Secretary Chad Wolf said in a statement. “In response, we must do everything we can within the bounds of the law to make sure the American worker is put first.”

At the same time, a new Department of Labor rule is slated to go into effect requiring employers to increase what they pay H-1B recipients in an effort to discourage companies from undercutting American workers.

Administration officials argued that the H-1B visa program had been abused at the expense of American workers, and they seized on the ongoing economic effects of the pandemic to argue the timing was right to crack down.

“Companies that have used the H-1B program have been incentivized to avoid hiring Americans… so that they can replace them with cheaper foreign labor and that abuse will end with this new rule,” Ken Cuccinelli, DHS acting deputy secretary, said on a call with reporters on Tuesday.

The DHS rule will affect over one-third of H-1B petitions. Although that does not mean an automatic rejection of the petitions, the “vast majority of them will in fact be rejected just as a statistical matter,” according to a senior department official.

“A big part of why we’re putting out the rule is to respond to the recent shock to the labor market,” a senior department official said.

The rule was done without a public comment period and as an interim final rule (IFR) in order to expedite how quickly it can go into effect.

“Given the damage done to the economy by COVID and the need to get Americans back to work was the focus of the basis to do this as an IFR,” a senior department official said.

Immigration hawks hailed the move as overdue.

“While the current unemployment crisis triggered these regulatory reforms to the H-1B program, we expect that these changes will be long-lasting," Dan Stein, president of the Federation for American Immigration Reform, said in a statement. "Once these protections for American workers are firmly in place, it will be very difficult for any future administration to reinstate the ability of employers to deny jobs and undermine the wages of U.S. workers."

The rule changes build on President Trump's executive order in June to suspend the issuance of certain temporary worker visas through the end of 2020. That order applied to H-1B visas, H-2B visas, H-4 visas, L-1 visas and certain J-1 visas.

The Trump administration has justified its crackdown on foreign work visas by arguing that American workers should be prioritized amid the economic downturn caused by the coronavirus pandemic.

Business groups promptly filed a lawsuit over the executive order, arguing that the U.S. has benefited from temporary worker visa holders.

Critics point to the timing of the changes so close to Election Day to argue that the moves are politically motivated and intended to shore up support among Trump's base.

“This last-minute action is an obvious political ploy by the Trump Administration to cover up for the fact that President Trump broke his campaign promise to crack down on H-1B abuse on the first day of his Administration,” said Sen. Dick Durbin (D-Ill.), who has previously supported legislation to overhaul the H-1B system. 

“President Trump never responded to my call three and a half years ago to use his executive power and protect workers from H-1B abuses,” Durbin said. “Instead, the Trump Administration has granted tens of thousands of H-1B visas to outsourcing companies that specialize in offshoring American jobs.”

The U.S. Chamber of Commerce, which filed the lawsuit in July, said Tuesday’s rules could be harmful.

“We’re still evaluating these proposals, but both of these rules have the potential to inflict serious harm upon many American companies,” Jon Baselice, Chamber executive director of immigration policy, said in a statement on Tuesday.

Another business group that filed the lawsuit, TechNet, said that the new rule will harm America’s ability to recover from the pandemic and “has zero impact on increasing domestic American jobs.” TechNet is a trade group consisting of tech executives.

“Changing the requirements around H-1B and other work visas will only hurt American companies that depend on high-skilled workers who fill critical positions while we work to grow our domestic STEM pipeline,” TechNet CEO Linda Moore said.

The National Association of Manufacturers (NAM), another group that filed the lawsuit, also expressed its concern over the rules.

“Manufacturers are concerned with administration actions that impede our ability to access and develop top talent in a challenging economic environment. Actions taken without stakeholder input can disrupt industry and undermine ongoing recovery efforts,” a NAM spokesperson said.

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