Trump administration on Tuesday announced the interim final rule that restricts H-1B visas to protect American workers.
The new rules include tightening the currently regulations proposed by Department of Homeland Security and new wage rules for the skilled immigration visa, proposed by the Department of labor. While the former will come into to effect 60 days after publishing in the Federal Register, the latter will come into effect on Thursday right after publishing.
These regulations are also expected to impact a third of H-1B petitions. Immigration experts pointed out that these changes are expected to be challenged in the court.
The new rule will do three things.
1. It will narrow the definition of specialty occupation.
2. Additional documentation required by companies to prove that they need the H-1B workers to prevent them from displacing American workers.
3. DHS’ power to enforce compliance would be enhanced through worksite inspection and monitor compliance before, during and after H-1B petitions are approved.
The rule is also likely to change minimum wage levels of H-1B workers.
This would impact Indians and tech firms that employ a large portion of Indians as it is likely to make it harder for them to be eligible for an H-1B visa.
Analysts had pointed out that this would further drive localisation that has seen an increase over the last three years since Trump administration took over.
There were about 1.3 lakh Indian H-1B workers in the US at the end of FY19. Indians are one of the largest beneficiaries of the 85,000 H-1B visas issued every year.
H-1B displaces American workers
According to DHS, H-1B was used by companies to displace close to half a million American workers. “This has led to reduced wages in a number of industries in the U.S. labor market and the stagnation of wages in certain occupations. These latest efforts on H-1B visas are part of a larger Trump Administration goal to protect American workers.
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The new rule intends to immediately 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 the US workers.
“The pandemic’s economic impact is an “obvious and compelling fact” that justifies good cause to issue this IFR,” the statement added.
Special waiver to pass the rule early
In September, DHS and Department of Labor had proposed two regulations restructuring of wage levels of the highly-skilled workforce, including those under the H-1B, by the Department of Labor (DOL) and ‘Strengthening the H-1B Non-immigrant Visa’ to strengthen the current
They were submitted to the Office of Management and Budget for review in the interim final rule stage. The OMB had 90 days to review. However on September 30, both of the rules were withdrawn. According to immigration experts, the administration was looking at using a special waiver of a review step to speed up the roll out. This means that the process would be pushed forward instead of going for the review period.
The US Citizenship and Immigration Services will forgo the regular notice and comment period, the department of homeland security (DHS) said in a statement.
