DHS Announces Merit Based Changes to H-1B Program

By Heather Ham-Warren | February 1, 2019

In April 2017, President Trump signed the “Buy American and Hire American” executive order, which, among other things, directed the Department of Homeland Security (DHS) to crack down on fraud and abuse in the H-1B visa program. The Executive Order called for ending the allocation of H-1B visas by lottery and suggested that those visas be allocated to the most-skilled or highest-paid foreign workers. In addition, it seeks to curtail foreign labor contractors from turning the H-1B program into a cash cow by snapping up the majority of visas available each year and then subcontracting workers to American businesses.

Earlier this week, DHS posted a final rule amending the regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. According to the announcement, beginning April 1, U.S. Citizenship and Immigration Services (USCIS) will select H-1B petitions out of the pool of all beneficiaries—including individuals eligible for the advanced degree exemption. USCIS will then fill any remaining spots with advanced degree petitions.

This reversal in selection order is expected to increase the number of beneficiaries with a masters or other higher degree from U.S. colleges and universities by 16 percent— a decision very in line with President’s Trump’s desire to move towards a merit-based immigration system.

“These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better,” said USCIS Director L. Francis Cissna. “We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The administration’s actions are certainly a step in the right direction; but still fall short of real reform. The flawed, loophole-ridden H-1B program still enables displacement and wage depression of American workers. Since it was created by Congress, it must be fixed by Congress.