The USDOL (Department of Labor), and the USCIS – an agency of the Department of Homeland Security – have teamed up to effectively gut the H1B specialty worker program. In the federal register publications of the interim final rule, both these agencies issued rules which, if implemented, would mean a crushing blow to the H1B program as we know it. This is in keeping with this administration’s backwards anti-immigrant policy, of keeping immigrants out and securing jobs for the US workers, whether or not there are US workers who are qualified, willing, and able to do those jobs. Another great example of “make America great again” without first creating a foundation, namely to train US workers for these skilled jobs.
Anyway, politics aside, what do these crazy, poorly thought-out rules do:
First, the DOL interim final rule, which is already in force (effective October 8, 2020)
The interim final rule destroys the current wage structure for H1B occupations. Previously, the H1B occupations were classified into four different wage categories, cut off from the existing wage schedule as follows:
- Level 1 wages started at the 17th percentile of all US worker wages for that occupation
- Level II wages started at the 34th percentile
- Level III wages started at the 50th percentile
- Level IV wages started at the 67th percentile
Under the new rule nothing below the 45th percentile will be considered, so:
- Level I wages start at the 45th percentile
- Level II wages start at the 62nd percentile
- Level III wages start at the 78th percentile
- Level IV wages start at the 95th percentile
Therefore, where employers – especially smaller employers – could hire newly minted graduates or individuals with less experience for much lower wages (17th percentile and higher of the scheduled DOL wages surveyed), such entry level wages now start at the 45th percentile. This rule will price H1B out of the pay budget of most companies and even high-profile IT giants!
The question to be asked is which employer is going to believe an unskilled, inexperienced employee, perhaps just coming out from college, is going to be able to perform at a level of pay earned by an employee with several years of experience? The 45th percentile for an entry-level position – incredible!
Second, with regard to the Department of Homeland Security interim final rule, which will become effective on December 7, 2020, certain key structural changes are made to the H1B program which will make it very difficult for H1B employers to file for H1B petitions for their employees. This rule in addition to the wage rule discussed above would effectively eviscerate the H1B program. Some of the key provisions of the DHS interim final rule are the following:
The specialty occupation now requires a “direct relationship” between the required degree field and the duties of the position. Therefore, general degrees in engineering, liberal arts, business, and other fields of study without further specialization or explanation are not sufficient to meet the requirements of “specialty occupation”. This is crazy, because as you know, when an employer requires a mechanical engineer, they are not looking for an engineer with specific technical skills, but generally a broad mechanical engineering degree. Most schools and colleges also do not diversify or specialize at the bachelor’s level, with good reason: a bachelor’s degree is intended to be a first, overall degree of the science or art, giving the degree holder a strong foundation for specialization in a subsequent masters or other certification.
In cases where there are different fields of study or different degrees as alternative minimum requirements for position, the employer must explain how each and every specific field of study is “directly related” to the duties and responsibilities of the particular position. Therefore, a multidisciplinary approach for a professional may not work, even though the requirements and the employers needs are perfectly justifiable given the demands of the industry and the demands of the technical work involved.
The bachelor’s degree is no longer considered to be a mandatory “normal, common or usual requirement”. Under the new rule, the bachelor’s degree is always required by the industry as a whole or required for the occupation as a whole.
We know that this is preposterous, because there are many instances where individuals who have sufficient on-the-job training, or have acquired skills elsewhere, or have other certifications, or have acquired enough experience, may sometimes do the job that is held by a degreed individual. But there is no exception within the rule for this type of employee. Rather, any and every occupation in which an H1B is sought to be employed must require (and the key word here is “must”) at least a bachelor’s degree. There is no exception for alternative requirements.
Therefore, if an employer has hired another worker for the position who does not have a bachelor’s degree, that automatically removes the position from that of a “specialized occupation” and is thus ineligible for H1B status.
With regard to third-party worksites, the H1B’s will be issued to such employees for a maximum validity of only one year.
The United States employer may not include a contractor in these employment places.
There are many other provisions of the new H1B regulation which are extremely burdensome to the employer and to the beneficiary. Further details would be rolled out as the USCIS issues additional comments, and before the interim final rule goes into effect on December 7, 2020.
The interim final rule also deals with numerous other minor items in the current regulations such as site visits, verifications, bona fide job offers, start dates, and the definition of employer/employee relationship including whether the employer actually exercises the right to control the employee. All of these items are necessarily subject to change or revision based on the comments submitted during the comment period. Therefore, please stay tuned to this blog for any further developments on the DHS rule making massive changes to the H1B program.
As always, my law firm stands ready to assist employers and prospective H1B employee candidates with any questions on the H1B process, including filing applications as and when such applications may be eligible to be filed based on the changes made earlier this year with regard to the lottery scheme (see other articles on this blog).
© Farhad Sethna, Attorney, 2020
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to FSethna@immigration-america.com. We will try to answer as many questions as possible.