H-1b new rule

The Department of Homeland Security Nov. 30 released a Notice of Proposed Rulemaking which would essentially allocate a greater share of H-1B visas to those with advanced degrees from U.S. universities. “The Trump administration is revealing its animus towards India-based companies and Indian IT workers,” Indian American immigration attorney Cyrus Mehta told India-West. (Raveendran/Getty Images)

The Department of Homeland Security released a new Notice of Proposed Rulemaking Nov. 30, which would give greater preference for allocation of coveted H-1B visas to those with advanced degrees.

The 188-page proposed rule — which can be viewed here in its entirety: https://bit.ly/2Sme8mW — was scheduled to be entered into the Federal Register Dec. 3. It must then undergo a 30-day comment period. DHS must review and respond to all relevant comments before a final rule is published.

The proposed rule requires all potential H-1B applicants to first register with U.S. Citizenship and Immigration Services, which will then determine whether the applicant is eligible to file a full H-1B petition.

“USCIS would also reverse the order by which it selects H-1B petitions under the H-1B cap and the advanced degree exemption, likely increasing the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap number, and introducing a more meritorious selection of beneficiaries,” noted DHS in a press statement.

Currently, 65,000 H-1B visas are annually allotted via lottery per the H-1B cap; applicants need only an undergraduate degree to be eligible. An additional 20,000 H-1B visas are reserved for those with advanced degrees.

The reversal of the program’s eligibility requirements violates the statute under which it was created, Indian American immigration attorney Cyrus Mehta told India-West. If implanted, the rule will be challenged in court, said the New York-based attorney, adding he was unclear as to whether the Trump Administration would prevail. “The re-ordering of the selection process is not in the spirit of the statute,” he said.

“The Trump administration is revealing its animus towards India-based companies and Indian IT workers,” charged Mehta. “I believe that is the subtext of this proposal.”

Irving, Texas-based immigration attorney John Lawit told India-West the administration was explicitly stating the type of worker it wants in the H-1B program, which is vastly different from the current H-1B pool. “Most employers who hire H-1B workers are happy with employees who hold just a bachelor’s degree,” he said, noting there is little need to infuse the H-1B workforce with those holding master’s degrees or higher.

If the rule is implemented, prevailing wages specifically set for H-1B workers would have to be raised to accommodate a more highly-skilled workforce, said Lawit, who believes the administration’s ultimate aim is to scrap the H-1B program entirely.

Former White House administration official Doug Rand, president and co-founder of Boundless Immigration — https://www.boundless.com — told India-West the proposed rule was unlikely to impact wages or hiring decisions in any significant way. He noted that USCIS itself predicts that switching the order of the H-1B lottery" would result in about three percent more of these visas going to U.S. advanced degree holders, compared with the status quo system.

“This particular proposal would not change who's eligible for an H-1B, but would slightly improve the odds of any given applicant who has an advanced degree from a U.S. university.”

“This is not a huge change, but could affect companies that employ a relatively high proportion of H-1B workers without such degrees,” said Rand.

In a statement announcing the proposed rule, DHS noted that President Donald Trump issued the “Buy American, Hire American” executive order in April 2017, instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.”

“The executive order specifically mentioned the H-1B program and directed DHS and other agencies to ‘suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,’” noted the agency.

The proposal would also create a more efficient and cost-effective H-1B cap petition process for USCIS. The proposed rule would help alleviate massive administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process.

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