Over the last year and a half, the government has been working toward restricting immigration under Trump’s Buy American and Hire American Executive Order. This is no secret. Such a goal has been at a tremendous cost. Border agents threw tear gas at migrant crowds including children. Children are being ripped from their parents and locked in cages at the border. There is the task force set up to denaturalize individuals. There has been immigration legislation introduced to reduce so called “chain” immigration. There has been a public charge rule change proposal to deny legal status to those who have received food assistance, welfare benefits and even medicaid. More employment based applications are being denied. Now there has been another proposed change to H-1B processing which further raises the question of the underlying motive. Will the repercussion be negative?
The New Rule
The new proposed rule is open for comments (notice of proposed rule making). The rule would require petitioners who want to file H-1B cap-subject petitions to electronically register with U.S. Citizenship and Immigration Services (USCIS) before filing the full H-1B petition. Currently, there is a cap of 65,000 for H1-B regular petitions, and an additional 20,000 cap only set for those with advanced degrees.Under the new rule, the USCIS would select applicants who qualify for the advanced degree exemption first from the regular cap of 65,000, then select the remainder left in the advanced degree cap. According to the USCIS, this change would increase the number of individuals with advanced degrees by 16%. This increase pushes forth the immigration policy based on merit.
The H-1B program enables companies in the United States to temporarily employ foreign workers in specialty occupations such as the tech field, that require specialized knowledge and a bachelors or higher degree. When USCIS receives petitions that exceed the number of the H-1B cap, a lottery is used to select the enough petitions to reach the cap.
So good or bad?
Such a change is not necessarily a bad thing in itself, however there are questions about how rushed this process is and whether this rushed implementation of a new selection process could unduly delay, hinder or compromise the H-1B selection process. Negative repercussions have been seen after the discriminatory Trump muslim ban, the child separation policy and the restriction on asylum. This proposed change may be another policy that will backfire, potentially having a domino effects on U.S. businesses that depend largely on the H-1B employees. The period to submit commentary is until January 2, 2019. That is also questionable, as the period to submit comments is usually 60 days. Another sign this may be a rushed process without much thought behind it. We’ll see.
NOTE: As always, this is complex stuff so get an attorney on your employment based case to do it right.