New H1B Final Interim Rule: destined for disaster!
By Lawyer Dev Banad Viswanath
The Department of Homeland Security, which manages USCIS, and the Department of Labor issued two interim final rules affecting H1B visas on October 8th, just 3.5 weeks before the 2020 presidential election. The proposed rules, which are expected to take effect on December 7, will make it much harder to decide on H1B visa petitions. A comment period for the public to respond and voice thoughts and concerns is standard procedure for proposed rules. Overstepping the comment period, enforcing the rule, and then allowing people to voice their opinions is an unprecedented move by DHS. The agency asserts that everything is done in the name of rescuing America from the Covid 19 crisis and the high unemployment rate.
They have dropped a bomb before the elections, adding to an already harsh situation. Additionally, lawsuits will almost certainly be filed to stop these changes. We need to be aware that at this time, life for Employers and H1b applicants may become significantly more difficult, despite the fact that it is uncertain whether this plan will actually come into effect or whether the election will have an impact on this rule. It is beneficial for the general public to be aware of what might happen.
The DHS rule will change, among other things, the definition of what it means to be in a "specialty occupation," making it much harder to meet the criteria. The DOL rule will also drastically change how prevailing wages are calculated, which will raise the wage rate that H1b candidates must be paid.
These are the main changes:
1) A modification to the regulatory definition of a "specialty occupation;"
2) Change the regulatory definition of "United States Employer" and "employer-employee relationship" to exclude or limit the H-1B category where H-1B workers are placed by third parties;
3) A change to the Labor Condition Application (LCA) requirement that requires the end client to participate in or sign the LCA whenever an H-1B worker is assigned to a third-party work site; 4) Regardless of actual wage data for the labor market, modify prevailing wage requirements to restrict access to the H-1B visa program to professionals with the highest salaries.
There is no way to circumvent it. These final interim rules are terrible! They have a fair amount of appeal to populists and nationalists, but they will also hurt our economy because the number of qualified people will drop significantly. I have no doubt that outsourcing will increase again, but it will also destroy the lives of so many people who entered the American system as H1B employees, spouses, or children, as well as the hundreds, if not thousands, of businesses that rely on the H1B category of immigration to meet a portion of their staffing requirements. Jobs will be eliminated and money will be lost.
Stakeholders, institutions, corporations, individuals, and employers are all invited to voice their concerns or comments. If you or someone you care about needs advice on these new rules, please get in touch with an experienced immigration lawyer.
