New rules for H-1B visas: what you need to know

WASHINGTON – The Trump administration on Tuesday launched a long-anticipated change to the H-1B visa program for highly skilled foreign workers, aimed at tightening eligibility for a program of high importance by US high-tech firms and other employers. To do.

The changes, some of which come into effect immediately and all of which will face legal challenges, will make it harder for applicants to qualify for H-1B visas and for companies to sponsor them Will be more expensive.

Here are some things about the new policies.

Didn’t the Trump administration already ban the new H-1B visa?

In June, President Trump announced a temporary ban on H-1Bs and several other foreign-workers visa types that are still overseas. He justified the ban, which was established by the end of 2020 as a necessary measure to protect American employees who lost their jobs during the coronovirus epidemic.

However, last week a federal judge in California temporarily lifted the ban on most companies that were suing to strike it, and the State Department later announced it would stop all enforcement of the ban while litigation In progress. The new rules apply to all H-1B applicants, here or abroad, aiming to impose more permanent restrictions.

President Trump signed an executive order in 2017 to revise the H-1B visa program during an equipment manufacturer’s visit in Kainos, Wis.


Scott Olson / Getty Images

Who can be affected by the changes?

Currently anyone applying for a new H-1B visa or renewal of an existing visa. All those people are subject to the new salary requirements imposed by the Department of Labor, as well as what degree and occupation are eligible for H-1B visas according to new regulations of the Department of Homeland Security.

A major change applies to any H-1B visa worker who is employed by a company, but primarily works on site in a second. This type of arrangement is particularly popular among large companies that contract with external information-technology or human-resource companies. In that case any employee can only get a good visa for one year, as for the more specific three years.

The change, should it take effect, would be especially important for hundreds of thousands of Indian workers. Due to permanent residency status for Indians, they are caught in a long backlog and meanwhile rely on H-1B visas to legally remain in the country. Many of these people are hired by IT companies that keep them with customers. Under the proposed rules, they would have to renew their visas each year, a process that would cost their employers thousands of dollars each time.

Do the rule changes affect current visa holders in any way?

Anyone working on a valid H-1B visa will not be immediately affected. No person filing an H-1B visa petition with US citizenship and immigration services will be affected by early December.

In the future, will fewer applicants be eligible for H-1B visas?

Yes. The Department of Homeland Security estimated on Tuesday that about a third of applicants applying for H-1B visas in the past five years would not be eligible for them under the proposed new set of rules.

This is for various reasons. One of the most important are the more restrictive standards that qualify as “specialty businesses” – from software engineers to doctors to architects to H-1B recipients allowed to work.

DHS will require that applicants have at least a bachelor’s degree, eliminating the possibility that some applicants enter the US with years of relevant experience that may have previously been equated to a college education. The new rules also state that the degree must be in a directly relevant field, meaning applicants for a job may not likely be computer programmers with a degree in economics or engineering.

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Those more restrictive standards can make it harder for some entire job categories to qualify for an H-1B visa – because if more than one degree type can qualify an applicant for a particular job, Then that job will not be considered sufficiently specific to be eligible for an H-1B worker. This provision will target new areas such as artificial intelligence or market research, where specific degrees do not exist or are not common.

The government has already cited some of these objections in an attempt to reject H-1B visa applications, with varying amounts of success. The rejection rate of H-1B visas has increased from 6.1% in 2016 to 15.1% in 2019 under the Trump administration.

How soon can these changes take effect?

Applicants and their sponsoring companies must immediately ensure that they are complying with the new wage requirements set by the Department of Labor, which significantly increases the benchmark salary H-1B visa recipients must pay. According to data from the Department of Labor, an entry-level electrical engineer in San Jose, California would receive a salary of $ 127,042 compared to the current requirement of $ 88,012.

The new salary requirements come into effect on Thursday and will affect any applicant who has not previously done paperwork with the Department of Labor as part of its application.

A rule published by DHS stems other major changes that do not take effect for two months. These include the short visa requirement for contract personnel and stringent regulations around specialized occupations.

Is there a chance that the new changes will not take effect?

Both sets of rules can be challenged in court by trade and immigration groups. Legal experts say the process the administration used to release them – so they become effective immediately, without going through a period of public comment for the first time – would have made them more vulnerable to downing is.

The administration said the hasty process was necessary because H-1B visa workers could fill jobs that might otherwise be unemployed Americans during the coronovirus epidemic. However, the administration has lost several other cases where it advances policy without first doing a sufficient analysis of how the change will affect those already dependent on the programs the government wants to change.

The validity of the term of Homeland Security Secretary Chad Wolf has been questioned by the courts, which could invalidate decisions by the department.


Greg Nash – Pool Via Cnp / Zuma Press

The DHS policy has an additional vulnerability. It was issued by Chad Wolf, acting secretary of Homeland Security, who ruled in two federal courts that he was in that role illegally. Should a judge decide in a doctrinal H-1B case, this rule could be struck down for the sole reason that Mr. Wolf did not have the authority to issue it.

Should Democrat Joe Biden win the presidential election next month, he may want to reverse the changes, though it could be a one-month regulatory process. The Senate can also vote to undo the changes by a simple majority.

Write Michelle Hackman at [email protected]

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