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Administration announces significant changes to H-1B visa program

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Every year, the U.S. government issues 85,000 H-1B visas by using a lottery system. These visas are heavily used in the tech sector to employ computer engineers and software developers. However, many others in “specialty occupations” are eligible for H-1B visas.

Now, the Labor Department has issued a new rule that would restrict H-1B immigration. The acting deputy secretary of Homeland Security, Kenneth T. Cuccinelli, estimates that the new rule will reduce H-1B petitions by a third.

The rule changes are being published as an interim final rule, which means that the agency has designated the changes as exempt from the normal regulatory process. That process generally requires agencies to obtain public feedback before finalizing rules. As a result, many experts predict swift court challenges to the rule.

The reason the rule change is being made is the pandemic, according to the deputy secretary of Labor. With so many Americans out of work and the economy in recovery, he said, the agency needed to take immediate action to reduce the number of lower-cost foreign workers.

The rule takes effect 60 days from publication, which should take place this week.

Eligibility for H-1B visas to be tightened

The H-1B visa is primarily for workers in “specialty occupations,” although it is also available for workers in certain Defense Department research and development projects and to fashion models of distinguished merit or ability.

Essentially, a specialty occupation is one that 1) requires both the theoretical and practical application of a body of highly specialized knowledge and 2) requires a bachelor’s degree or higher as a minimum entry into the occupation within the U.S.

Under the new rule, the visa applicant will have to have a degree in the specific specialty occupation they are applying for, rather than any college degree. In addition, some applicants will have to show how their studies have provided “a body of highly specialized knowledge” for the job they apply for.

Wage requirements would increase

Currently, employers must pay entry-level H-1B visa holders a salary in the 17th percentile of the profession, based on salary surveys of each profession. The new rule would require employers to pay entry-level H-1B holders a salary in the 45th percentile.

For higher skilled workers, the current salary requirement is one in the 67th percentile. This would be raised to the 95th percentile.

These changes to the wage requirements sound enticing, but experts say they could price some employers out of the market.

The H-1B program is quickly changing, and these rules are just one example. If you want to apply for an employment-based visa in the U.S., contact Yew Immigration Law Group. There may be more options than you realize.