This Issue: New rule aims to reduce abuses of H-1B visa program in order to better protect American workers
Fri,
Oct. 9th
High-skilled American workers who face job competition from foreign guest workers should get some relief once an interim rule announced by the Trump Administration earlier this week takes effect.
The new rule would make regulatory changes to the H-1B visa program by strengthening the job qualifications required in order for employers to petition for H-1B workers, increase oversight of the program, and clarify the relationship between employers and H-1B contract workers.
Specialty Occupation
The H-1B visa is issued to foreign workers to perform work in a "specialty occupation", but the current regulatory definition only requires a bachelor's degree or equivalent experience that's not necessarily related to job to be performed.
The rule would strengthen the term to require that an H-1B worker has specialized training with a direct relationship to the job. This key change will prevent employers from petitioning for H-1B workers without specialized training.
Employer-Employee Relationship
Under the current regulatory guidelines, an H-1B worker can be contracted out by an employer to perform work for another company. The most famous example of this is when Disney fired hundreds of tech workers in Orlando, Fla. and replaced them with H-1B workers from a contracting firm.
The H-1B visa program prevents employers from replacing its own American workers with H-1B workers, but since Disney used an outside firm to perform the work, they could claim that they weren't "replacing" those workers with H-1B workers.
The rule would close this loophole by amending the definition of the "employer-employee relationship." Under the new guidelines, if an H-1B worker is contracted out, the employer-employee relationship would no longer be between the H-1B worker and his/her firm, but instead, it would be between the worker and the employer for which the work is being performed.
Second, the rule would require that the employer demonstrate that a job offer is non-speculative, meaning that there is clearly defined work ready to be performed by the worker. This will prevent outsourcing firms from simply stocking up on H-1B workers.
Third, existing law allows for H-1B visas to be issued for a maximum of three years, but it doesn't require that all visas be issued for that period of time. Therefore, the new rule will limit the length of the visas for H-1B workers who are contracted out to only 1 year.
Strengthen Oversight
Lastly, the rule will strengthen oversight of the H-1B program by adding work site visits under DHS' authority to conduct inspections. These inspections can occur at both primary and third-party worksites.
Employers will be required to fully cooperate in inspections or risk losing their ability to petition for H-1B workers.
For more on the rule, you can read our news story here.
DOL Increases Minimum Wages
Additionally, the Department of Labor issued a new rule this week that will raise the minimum salaries for each of the four wage levels for H-1B visas.
While supporters of the visa program say it enables employers to bring in the "best and the brightest", wages for H-1B workers don't reflect that.
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Chris Chmielenski
NumbersUSA Deputy Director |
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