Update: Separate from the proposed rules below, on October 28, 2020, DHS proposed a rule to drop its lottery of H-1B slots, and replace it with a de facto auction, thus running up the costs of the program to — one hopes — the extent that it will create jobs for American workers.
The new H-1B rules by the Department of Homeland Security (DHS) and the Department of Labor (DoL) are long overdue. By making it harder to exploit the H-1B program to replace Americans, and by creating a more realistic yardstick for wages that must be paid to foreign workers, the Trump administration will be taking a big step toward implementing the president's Hire American pledges. By adjusting wages upward and squeezing out H-1B "body shops", the reforms will likely raise the skill levels of the H-1B and employment green card programs.
Department of Homeland Security Regulations
Read and comment on "Strengthening the H-1B Nonimmigrant Visa Classification Program", the DHS H-1B rule is located on the Federal Register website.
The new rule will:
- Narrow the definition of "specialty occupation" as Congress intended by closing the overbroad definition that allowed companies to game the system;
- Require companies to make "real" offers to "real employees," by closing loopholes and preventing the displacement of the American worker; and,
- Enhance DHS's ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.
"What the new rules propose are, in essence, more careful definitions of some of the terms and conditions of employment, and a more careful vetting of the applications before the agency. This is all very commendable, but the new rule provides hidden data that suggests that USCIS's ability to do a more careful job in adjudication is rather limited."
Department of Labor Regulations
Read and comment on "Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States", the DoL H-1B rule is located on the Federal Register website.
The primary purpose of these changes is to update the computation of prevailing wage levels under the existing four-tier wage structure to better reflect the actual wages earned by U.S. workers similarly employed to foreign workers. This update will allow DOL to more effectively ensure that the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above referenced programs does not adversely affect the wages and job opportunities of U.S. workers.
What will all this cost employers, assuming that they continue with the H-1B program? Using the soft term "transfer" rather than "additional cost", the DoL estimates that "The annualized transfer over the 10-year period is $23.25 billion and $23.5 billion at discount rates of 3 and 7 percent, respectively."
That's billions with a B. That's a whale of a lot of money — every year — and should persuade some H-1B employers to look again at the citizen and green card work force.