Trump administration unveils new H-1B visa restrictions

New rules will make it harder to hire high-skilled foreign workers favored by tech companies, health care and academia

“We’re making good on the president’s promise to protect Americans from those who seek to exploit the system for their gain,” Kenneth Cuccinelli says of the new rules for the H-1B visa program. (Tom Williams/CQ Roll Call)
“We’re making good on the president’s promise to protect Americans from those who seek to exploit the system for their gain,” Kenneth Cuccinelli says of the new rules for the H-1B visa program. (Tom Williams/CQ Roll Call)
Posted October 6, 2020 at 6:07pm

The Trump administration on Tuesday announced new rules on the H-1B visa program that will make it more difficult for highly skilled foreign workers who have at least a college degree to work for U.S. companies. 

During a press call Tuesday, top officials at the Homeland Security and Labor departments said the new rules would modify the current wage requirements of the program and restrict what types of occupations would be eligible for such visas, as well as put in place stricter enforcement. In an accompanying press release, officials billed these changes as an important first step in a larger coordination between the two departments to “protect American workers.”

“I cannot overstate how big a deal this is,” said Ken Cuccinelli, the senior official performing the duties of acting deputy secretary at Homeland Security. “In the history of DHS, we have never done as much in the H-1B space as we are announcing today.”

The Labor Department rule, unveiled in the Federal Register, would go into effect when it is published Thursday. In general terms, it would require U.S. employers to pay H-1B recruits higher wages so they have little incentive to lay off or displace American workers and replace them with cheaper foreign labor.

This change was “long overdue,” Deputy Labor Secretary Patrick Pizzella told reporters, adding that it had “become imperative in light of the current conditions in the U.S. labor market.”

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Changes under the DHS rule would be geared toward closing “loopholes” in the current regulations that allow companies — often called “shadow employers” or “body shops” —  to mass recruit foreign workers and then contract them out to other businesses. The rule would also narrow the definition of “specialty occupations” eligible for H-1B visas and create a process for more worksite enforcement, which Cuccinelli called “a form of continuous vetting.”

The DHS rule would go into effect 60 days after it publishes Thursday in the Federal Register.

“We’re making good on the president’s promise to protect Americans from those who seek to exploit the system for their gain,” Cuccinelli said, adding that the rule would “ensure that Americans are first in line for American jobs as we continue our recovery.”

The H-1B program allows 65,000 visas to be distributed each year to eligible foreign workers. It is most often associated with the tech sector, and enjoys wide support in Silicon Valley, but is also used to employ workers in academic, health care and business roles. In recent years, the number of applications for H-1Bs have far exceeded the annual cap, prompting the use of a lottery system to select which applications would be processed to fill the available spots. 

The program has long elicited complaints from organizations and lawmakers from both parties. Critics often note examples in which large companies have replaced U.S. employees with H-1B workers, and how outsourcing companies, particularly Indian information technology firms, game the H-1B program to the detriment of U.S. small businesses and startups. Progressives have also pointed out that the program allows for the exploitation of foreign workers, who are dependent on their employer for their legal status in the United States. 

Immigration restriction advocates and some labor groups have long pushed for the changes announced Tuesday, making it a longstanding priority for the Trump administration.

A representative for Numbers USA, a group that advocates reduced immigration, applauded the rule on the press call. 

“These will clearly have a big impact on the ‘body shops,’” said Rosemary Jenks, the organization’s vice president and government relations director. She also asked officials why changes she said the administration previously discussed with the group — to do away with the lottery system and dole out visas to the highest wage earners  — were not included. 

“The effort to address the very random and arbitrary lottery is still ongoing and we’re pressing ahead with it with all due speed, but we’re not ready to announce the final product today,” Cuccinelli responded. 

Business leaders have argued that the H-1B visa program helps them recruit global talent and that restrictions would make that effort more difficult. Immigration experts have also noted that the visa is often used as a steppingstone by noncitizens who don’t have immediate relatives to immigrate legally to the United States, since they lack other viable pathways. 

On Tuesday, immigration advocates expressed concerns that the changes announced were based on inflated and misleading estimates about the displacement of American workers through the program. Others suggested that the changes fit within the Trump administration’s broader agenda to restrict legal immigration to the United States. 

Theresa Cardinal Brown, immigration and cross-border policy director at the Bipartisan Policy Center, said in a tweet that the new H-1B rules “are by name and design restrictions on H-1B visas as an interim final rule.”

“Lawsuits are inevitable, both on the scope of the rule but also in issuing it as an IFR [interim final rule],” meaning they would be enacted immediately.

Cuccinelli, however, brushed off the prospect of litigation during the press briefing.

“We understand there are risks any time you do a new regulation,” he said. “Given the benefit to Americans, we’re willing to live with that risk — obviously the president is.”