Last-Minute Obama Regulation Exempts Universities from H-1B Limits

By John Miano on March 22, 2017

"60 Minutes" Reported this Sunday on how American workers at the University of California-San Francisco were replaced by foreign workers on H-1B visas.

One of Barack Obama's parting gifts to American workers was to exempt such replacements from the H-1B quota.

Congress exempted from the quota aliens who are "employed (or [have] received an offer of employment) at a nonprofit research organization or a governmental research organization."

The new regulations expand "at" to its broadest possible meaning:

(4) An H-1B beneficiary who is not directly employed by a qualifying institution, organization or entity identified in section 214(g)(5)(A) or (B) of the Act shall qualify for an exemption under such section if the H-1B beneficiary will spend the majority of his or her work time performing job duties at a qualifying institution, organization or entity and those job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity, namely, either higher education, nonprofit research or government research. The burden is on the H-1B petitioner to establish that there is a nexus between the duties to be performed by the H-1B beneficiary and the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity.

In addition to workers employed by a university, the new regulation exempts H-1B workers from the quotas who are working for third parties at a university. As such, H-1B workers replacing Americans at universities are now eligible for the quota exemption.

The now former USCF workers can thank President Obama for their forced vacations.

This is not the first abuse of the quota exemption by universities. Wright State University used its exemption from the H-1B quota to hire H-1B workers and then subcontract them out to other employers.

Congress should rethink the wisdom of treating universities differently from other employers. Clearly, when it comes to abusing H-1B, universities are just as adept at it as for-profit employers.