The Trump Administration has introduced long-anticipated changes to the H-1B visa program for highly-skilled foreign workers, aimed at tightening eligibility for STEM talent working at major US employers, including by imposing a rigid requirement that any job offered to an H-1B worker require a single specific degree in a subspecialty, and that each H-1B candidate have that specific degree to qualify.
The changes, some of which come under immediate effect and all of which will likely face legal challenges, would make it tougher for applicants to qualify for an H-1B visa and significantly more expensive for employers to sponsor them for H-1Bs or for green cards.
The changes also will create high barriers for vendor partners to provide talent to major customers, as both the expense of new wages and specific requirements for vendors to renew their H-1Bs annually (or more frequently if statements of work provide for shorter periods), raise their costs substantially.
Specifically, the two new rules impose the following new requirements.
- New wage requirements imposed immediately. Effective today, the Department of Labor (DOL)’s “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule makes it much more expensive for US employers to sponsor foreign students and workers in the H-1B, H-1B1, and E-3 nonimmigrant visa categories, as well as for immigrant visas (green cards) in the second and third employment-based classifications (EB-2 and EB-3) categories for workers who must undergo the labor market testing process known as PERM. Prevailing wages in some occupational categories will increase nearly 60%.
- H-1B specialty occupation definition narrowed and new restriction on off-site resources imposed. Effective December 7, 2020, the DHS “Strengthening the H-1B Non-immigrant Visa Classification Program” rule will implement a novel definition of a “specialty occupation.” The new definition will restrict the H-1B category to individuals holding a bachelor’s baccalaureate or higher degree “in a directly related specific specialty, or its equivalent,” for a job that requires that specific degree formulation as its minimum prerequisite. This interim final rule also imposes a new definition of “employer-employee” relationship, limits the validity periods for H-1B workers placed at a third-party worksites, and imposes additional requirements on both staffing companies and their clients.
Both rules have been issued as Interim Final Rules, which makes them vulnerable to litigation based on the agencies’ bypassing of notice and comment, particularly as the delays in passing the rules have not been explained. The overall injury and disruption to employers and divergence of the wage levels from actual market wages are also likely to form part of the challenges and requests for injunctive relief.
Our full analysis may be found on Mayer Brown’s COVID-19 Response blog.