With less than one month until the presidential election, the Trump Administration released new rules on Tuesday that will make it harder for skilled foreign workers to acquire H-1B visas. The long-anticipated policies, were issued as interim final rules by the U.S. Department of Labor and U.S. Department of Homeland Security, and purportedly aim to “protect American workers and crack down on employer abuse of the H-1B visa”.

The sweeping changes — estimated by the Department of Homeland Security’s second-incommand Ken Cuccinelli — will impact more than a third of H-1B petitions. impact more than a third of H-1B petitions. The rules, which raise requirements for companies that hire foreign workers under the H-1B program, include:

New requirements for employers to increase the required wage associated with H1B, H-1B1, and E-3 benefit requests. 1B, H-1B1, and E-3 benefit requests. Specifically, the computation of prevailing wage levels will be adjusted, resulting in higher prevailing wages for all occupations for each OES-based wage level.

  • Level I Wage: 45th percentile (from 17th percentile)
  • Level II Wage: 62nd percentile (from 34th percentile)
  • Level III Wage: 78th percentile (from 50th percentile)
  • Level IV Wage: 95th percentile (from 67th percentile)

Revisions to the definition of specialty occupation. Under this rule, jobs that require applicants to have any college degree, or one of many possible degrees, would not qualify as a specialty occupation unless the employer can show that each degree option is directly related.

Changes the “employer-employee” requirements, specifically targeting employers that place employees at third-party work sites. The rule limits H-1B visas for these third-party placements to a one-year period, instead of the full three, and will increase immigration inspections of those third-party locations.

There is major risk for the Department officials to release the policy changes as interim final rules, instead of as proposals with a comment period, given that that the procedural sidestepping could provide more fodder for immigrant advocates and businesses to challenge the policies in court. The Department defended their decision, saying that “given the damage done to the economy by COVID, and the need to get Americans back to work…we’re willing to live with that risk. Obviously, the president is,” the official said.

The Jeff Goldman Immigration believes this government overreach will ultimately be halted/enjoined by the courts because the new rules did not go through a proper noticeand-comment period as required, and there is no good cause for having skipped this necessary step.

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