New Rules for H-1B Visas: What You Need to Know

Here are a few things you need to know about new policies.

Hasn’t the Trump administration already banned new H-1B visas?

In June, President Trump announced a temporary ban on H-1B and many other foreign-worker visa types for new applicants still abroad. He justified the ban, which will run until the end of 2020, as a necessary measure to save American workers who lost their jobs during the coronavirus epidemic.

However, a federal judge in California last week temporarily lifted the ban on most companies claiming to have it lifted, and the State Department later announced it would block all enforcement of the ban while the lawsuit is ongoing. The new rules apply to all H-1B applicants here or abroad and aim to set a more permanent ban.

Who can be affected by change?

Currently applying for a new H-1B visa or renewal of an existing visa. All of them are subject to the new wage requirements imposed by the Labor Department, as well as the Department of Homeland Security’s new rules that qualify degrees and occupations for H-1B visas.

A major change applies to H-1B visa workers who are employed by one company but work primarily on site. Such systems are especially popular with large companies that contract with outside information technology or human resource companies. In that case any employee could only get a good visa for one year, as opposed to the more typical three years.

This change must be brought about, especially for the hundreds of thousands of Indian workers who will be very diligent. Due to the caps on permanent residence status for Indians, they have been in the backlog for many years and in the meantime rely on H-1B visas to stay in the country legally. Many of these are employed by IT companies that keep them with customers. Under the proposed rules, they would be required to renew their visas each year, a process that costs their owners thousands of dollars each time.

Does the change in rules affect existing visa holders in any way?

Anyone working on a valid H-1B visa will not be immediately affected. Those who have filed an H-1B visa petition with U.S. citizenship and immigration services in early December will also not be affected.

In the future, will fewer applicants qualify for H-1B visas?

Yes. The Department of Homeland Security on Tuesday estimated that one-third of applicants for H-1B visas in the past five years did not qualify under the proposed new set of rules.

That is the case for a variety of reasons. Areas ranging from software engineers to doctors in which H-1B recipients are allowed to work have the most restrictive standards about what qualifies as a “specialty profession.”

D.H.S. Would require that applicants must have at least a bachelor’s degree, eliminating the possibility that some applicants with years of relevant experience would not be eligible for U.S. Enters into what may previously be considered the equivalent of a college education. The new rules also make it clear that the degree must be in a directly related field, meaning applicants for a job as a computer programmer may not have a degree in economics or engineering.

Those more restrictive standards may make it difficult for some full job categories to qualify for an H-1B visa – because if more than one degree type qualifies an applicant for a particular job, it will be considered a sufficient specialty to qualify for the job. Not for the H-1B worker. That provision would target new areas, such as artificial intelligence or market research, where a certain degree does not exist or is not common.

In varying degrees of success, the government has already cited some of these objections in its demand for rejection of H-1B visa applications. The rate of denial for H-1B visas has increased from 6.1% in 2016 to 15.1% in 2019 under the Trump administration.

How soon can these changes take effect?

Starting immediately, applicants and their sponsoring companies must ensure that they are complying with the new wage requirements set by the Department of Labor, which significantly increases the benchmark pay, must be paid to H-1B visa recipients. According to data from the Department of Labor, an entry-level electrical engineer in California, for example, will receive a salary of 12 7,127,042, compared to the current requirement of San 88,712 d current lar.

The new wage requirements apply Thursday and will affect any applicant who has not previously filed a paper with the Labor Department as part of his or her application.

Other major changes arise from a rule published by DHS that has not been in effect for two months. It includes a shorter visa requirement for contract workers and stricter rules for specialty businesses.

Is there a chance that the new changes will not take effect?

The set of rules is likely to be challenged in court by both business and immigration groups. Legal experts say the process by which the administration issues them – so that they become effective immediately without a period of public comment – is more likely to break them.

The administration said the rushing process is necessary because H-1B visa workers can fill jobs that could otherwise fall on employed Americans during a coronavirus epidemic. However, the administration has lost many other cases where it launched a policy without adequate analysis of how it would already affect people who rely on programs that the government wants to change.

There is an additional weakness in DHS policy. It was issued by Acting Secretary of Homeland Security Chad Wolf, who has ruled in two federal courts that he is serving illegally in that role. Should the same decision be made by a judge in a theoretical H-1B case, Mr. Wolf may break the rule for the sole reason that he does not have the authority to issue it.

If Democrat B Biden wins next month’s presidential election, he could also try to reverse the changes, although that could lead to a month-long regulatory process. The Senate can also vote to undo the change by a simple majority.

Write to Michelle Hackman at MichelleHackman કwsj.com