WASHINGTON – The Trump administration announced Tuesday major changes to the H-1B visa program for highly skilled workers, substantially increasing the salaries US companies have to pay for foreign hiring and limiting eligibility criteria for applicants.
Senior administration officials have framed the changes as a way to protect US jobs during the Coronavirus pandemic, although the Trump administration has pledged to reform of the program in 2017 as part of its efforts to reduce the number of foreigners employed in the United States.
“With millions of Americans looking for work, and as the economy continues to recover, immediate action is needed to protect against the risk that lower-cost labor can pose to the well-being of U.S. workers,” said Patrick Pizzella, deputy secretary of labor. told reporters on Tuesday.
The rules will directly affect foreign workers and employers, especially technology companies who have long supported the H-1B program and pushed hard for its expansion.
Kenneth T. Cuccinelli, deputy deputy secretary of homeland security, said he expected the changes to reduce by one-third the number of reports submitted each year on coveted visas.
The changes will be published this week as interim final rules, which means the organization believes it has a “good intention” to claim an exception to the normal requirement to receive feedback from the public before finalizing it.
Lawyers and immigration experts have predicted that the changes will be challenged in court quickly because they circumvent the normal regulatory process.
“The public has not yet seen these regulations and will not have the usual opportunity to comment as required by Congress,” said Doug Rand, founder Unlimited immigration, a technology company in Seattle that helps immigrants obtain green cards and citizenship. “Given the inevitability of judicial challenges, it seems that the chances of these policies are enduring.”
The government issues 85,000 H-1B visas each year, often using a lottery to award them because the number of employees sought by companies almost always exceeds the number of visas available. Many employees end up being funded by their employers so that green cards remain permanently in the United States.
Some critics have suggested that the changes, which came less than a month before the election, were politically motivated.
“Why this, why now and why is it an intermediate final rule?” said Theresa Cardinal Brown, director of immigration and cross-border policy at the bilateral policy center. “There is no estimate of the amount of jobs that workers in the US would actually lay off. It is at best a table. “
The Ministry of Labor rule, which takes effect when published, will increase wages for foreign workers, based on wage surveys in each profession. Companies should pay top-level employees to the program at the 45th percentile of their profession salary and not at the 17th percentile. Wages for highly skilled workers will increase to 95th percentile from 67th percentile.
“It will also lead to higher staff costs for some employers,” according to the Labor Department rule. “The purpose of protecting U.S. workers outweighs these interests and justifies such increased costs,” the agency added.
However, Stephen Yale-Loehr, a professor of immigration law at Cornell Law School, said the rule would have the opposite effect.
“By raising the required wages, the new rules will hurt all employers trying to hire foreign workers, but especially start-ups and smaller companies that may not be able to meet the increased wage demands,” he said.
The Ministry of Homeland Security rule, which is in force for 60 days, would also increase the eligibility of visa applicants. The rule would require foreign workers to have a degree in the “specialty” they are applying for, and not just any college degree. Some will also need to show how their studies provided “a body of highly specialized knowledge” for a possible job in the United States.
The largest share of H-1B visa holders is employed in the field of technology, where they work as computer engineers and software developers. Visas are also issued to architects, accountants and doctors, among a variety of professionals.
The rule will almost certainly have negative consequences for rural hospitals and other health care providers who depend on a fixed line of doctors from abroad because they cannot attract enough American doctors, who generally prefer to practice in urban areas.
For example, instead of offering a minimum starting salary of $ 120,000 to $ 130,000, a clinic in northeastern Pennsylvania that is considered inadequate would have to pay a foreign doctor about $ 195,000 or $ 200,000.
“Rural physicians should have experienced-level salaries, which may be more than their supervisor pays,” said William A. Stock, a Philadelphia-based immigration lawyer. “This will further limit the supply of doctors who want to move to rural America. It will put providers in an engagement that they cannot hire doctors born abroad. “
Rule H-1B comes to the fore in a declaration signed by President Trump in June that suspended a number of employee visas until at least 31 December. Teams representing thousands of companies challenged the declaration, which affected H-1Bs, seasonal H-2B work visas, L-1 visas for corporate executives and J-1 cultural exchange visas, including couples.
The teams won a suspension last week when one decided by the federal judge that Mr. Trump had exceeded his authority on the visa ban.
“There must be some measure of limitation of presidential power in the domestic sphere, so that the executive does not become a completely monarchical power,” the judge said.
His order was contrary to a previous federal judge in Washington, which ruled that the final decision would be made by an appellate court.
But he immediately lifted the ban on companies employing large numbers of foreign workers.