In the recent past, the demand for the 85,000 H-1B visa slots the U.S. government issues each year has exceeded the supply. The nonimmigrant visa, which is reserved for U.S. non-citizens to fill positions for “specialty occupations,” is set to become more difficult to obtain after federal agencies issued new rules for the H-1B category in early October. Who is the H-1B Visa Geared Toward? Broadly speaking, the H-1B visa is available for a specific subset of “skilled” foreign workers. More specifically, H-1B visa holders have at least a bachelor’s degree (with many of them having graduate- or doctorate-level degrees) and work in specialty level occupations. Technology companies and other outfits in the STEM fields often make use of the H-1B visa category. Of the 85,000 H-1B visas granted each year, 20,000 are reserved for foreign workers who received an advanced degree from a U.S. institution. What are the Changes? In short, the changes will make using the H-1B visa program cost-prohibitive for many U.S. employers. Based upon the new rules from the Department of Labor, which immediately went into effect, employers must pay entry-level workers wages in the industry’s 45th percentile. Higher-skilled workers, which previously had to receive wages in the industry’s 67th percentile, must be offered a wage in the 95th percentile. The rules also restricted the definition of a “specialty occupation” in the context of the H-1B visa program. The USCIS explained that a general degree (such as liberal arts) is not sufficient to qualify as a specialty occupation. Additionally, the changes require the H-1B position to be directly related to the degree earned by the visa holder. In the release multiple federal agencies announced the modifications to the H-1B visa program, including the Department of Homeland Security, the U.S. Citizenship and Immigration Services, and the Department of Labor. The purported reason for the changes is to preserve jobs and opportunities for U.S. citizens amid the COVID-19 pandemic. Also cited in the newly published rules are statistics allegedly showing wage stagnation in certain industries. What Happens Now? As of Oct. 13, 2020, the DOL rules are still in effect. The USCIS rules are set to take effect in 60 days. Besides making the program more expensive for U.S. employers and recent U.S. graduates, federal agencies have signaled that they will take a renewed interest in enforcing the H-1B rules. The federal government estimated that the number of H-1B petitions would decrease by a third in response to the changes. Some have suggested that the timing and substance of the new rules are politically motivated and that the […]
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President Trump signed a new Presidential Proclamation on June 22, 2020 barring the entry of certain work visa holders from entering the United States. The Proclamation is effective at midnight EDT June 24, 2020, and will continue through December 31, 2020. The Proclamation suspends issuance of visas for individuals seeking entry to the U.S. using an H-1B, H-2B, J-1 (intern, trainee, teacher, camp counselor, au pair or summer work travel participant) or L-1 visa. The Proclamation also suspends entry for dependent spouses and family members in these visa categories. Further, the Proclamation only applies to individuals if they are: Outside the U.S. on the effective date of the Proclamation (June 24, 2020); Do not possess a non-immigrant visa that is valid on the effective date of the Proclamation; and Do not have an official travel document other than a visa that is valid on the effective date of the Proclamation. There are two major exemptions to the suspension: individuals providing temporary labor essential to the U.S. food supply chain; or individuals whose entry is in the national interest as determined by the U.S. Secretary of State, U.S. Secretary of Homeland Security or their designees. Any modifications to the Proclamation will be considered within 30 days of June 24, 2020, and every 60 days thereafter. Further, the Proclamation directs U.S. federal agencies to undertake the following actions: Issue regulations to ensure that those individuals already admitted, or seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit the opportunity for U.S. workers. Undertake investigations of H-1 Labor Condition Application (LCA) violations. Change the process of allocating visas and ensuring that the presence of H-1B workers in the U.S. does not negatively affect U.S. workers, such as giving priority to certain individuals based on certain criteria. Ensure that an individual cannot apply for a visa or admission to the U.S. until after completing biometrics, including photographs, signatures, and fingerprints; and Prevent certain individuals who have been ordered removed from the U.S., who are removable from the U.S. or have been arrested for, charged with or convicted of a criminal offense, from being able to work in the U.S. Finally, the Proclamation extends the April 22, 2020 Proclamation banning entry of certain individuals applying for immigrant visas through December 31, 2020.
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President Trump signed a new Presidential Proclamation today barring the entry of certain non-citizens seeking to obtain immigrant visas. The Proclamation is effective as of midnight EDT April 23, 2020. The Proclamation only applies to individuals applying for immigrant visas that are outside the U.S. as of midnight April 23, 2020 EDT. The entry of such individuals into the U.S. is suspended until June 22, 2020 as immigrants. However, the President can extend the suspension. There are exceptions to this new temporary rule. The Proclamation will NOT apply to the following: U.S. Lawful Permanent Residents (green card holders) Immigrants seeking to enter the U.S. as immigrant physicians, nurses, or other healthcare professionals and their spouse and children under the age of 21; Immigrants applying for immigrant visas under the EB-5 Immigrant Investor Program Spouses of U.S. citizens and their children under the age 21 Certain individuals helping law enforcement or members of the armed forces Special Immigrants, such as Religious Workers U.S. Consular Officers at overseas Consulates and Embassies will determine if an individual qualifies for one of the exceptions. The limitation on entry into the U.S. does NOT currently apply to nonimmigrant visa holders (i.e. E, L, H, O, F, etc.) However, Section 6 states within 30 calendar days, the U.S. Department of Labor, the U.S. Department of Homeland Security and the U.S. Department of State are to conduct a review of all nonimmigrant visa programs and make recommendations for changes to these programs with the purpose of stimulating the U.S. economy and ensuring U.S. workers are given priority in terms of hiring and employment.
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