DHS Delays Critical H-1B Rule, Senators Respond
FAIR Take | March 2021
The Department of Homeland Security (DHS) announced in February that it will be delaying and reconsidering a critical regulation change governing how U.S. Citizenship and Immigration Service (USCIS) selects H-1B registrations for the filing of cap-subject petitions. The rule, which was finalized in January and was originally set to take effect in March 2021, requires USCIS to prioritize the most qualified foreign workers for H-1B visas subject to the statutory cap, thus ensuring U.S. businesses access to the best and the brightest foreign workers while also discouraging wage suppression and unfair competition for American workers. DHS pushed back implementation until December 31, 2021, but noted the agency would also reevaluate the rule in light of new administrative priorities.
Currently, USCIS issues H-1B cap-subject visas on a purely random basis using a lottery system. Although the law requires employers to pay foreign workers the prevailing wage for their positions, current Department of Labor (DOL) policies allow employers to offer wages at just the 17th percentile of equivalent domestic wages if the employer claims that the worker is entry level. These same policies also restrict DOL’s ability to challenge an employer’s claim about the foreign worker’s experience level or skills, which has resulted in substantial abuse and misuse of the H-1B and other employment-based visa programs and harms both foreign and U.S. workers.
While this reform is sorely overdue, it is especially critical that DHS implement the policy without delay given the severe economic harm caused by the COVID-19 pandemic. Recent analysis has estimated the unemployment rate to be as high as ten percent, not accounting for American workers who have taken temporary positions and are currently underpaid. The nonpartisan Congressional Budget Office has predicted that the U.S. labor market will take over a decade for conditions to return to pre-pandemic levels. DOL data shows that the U.S. currently has more than 9.8 million fewer jobs than it did just a year ago, and has only recovered less than half of the jobs that were lost just during the first few weeks of the pandemic. By requiring the USCIS to first select registrations based on the highest prevailing wage level that the proffered wage equals or exceeds for the relevant occupation and area of intended employment, the rule furthers Congressional intent by maximizing the H-1B program’s ability to promote innovation and productivity within U.S. economy, while minimizing unfair competition to U.S. workers and wage suppression generally.
The announcement of the agency’s decision to delay the rule’s implementation received the attention of Senate Majority Whip Dick Durbin (D-Ill.) and Ranking Member of the Senate Judiciary Committee Chuck Grassley (R-Iowa). The Senators jointly sent a letter to DHS Secretary Ali Mayorkas this week criticizing the delay. “The practical effect of this delay is that outsourcing companies will continue to game the lottery system and secure thousands of new H-1B visas for FY 2022 since the H-1B filing season begins in a few weeks,” said the lawmakers. “Implementing a reasonable allocation of visas as the H-1B selection rule would do is a meaningful step toward reform to protect American workers.”
DOL has also delayed implementation of a separate pro-worker rule, which would have raised the wage levels employers would be required to pay foreign workers to levels more in line with Congressional intent. The current wage levels set by DOL allow employers to, in many cases, severely underpay foreign workers below the prevailing wage for domestic jobs, and consequently, provide employers with a great incentive to prefer hiring a foreign worker over a U.S. worker.
The principal changes made by the DOL rule would have updated the four wage levels required in the H-1B, H-1B1, and E-3 visa programs to levels that more adequately reflect market wage rates in the U.S. labor market. The rule also would have applied the new wage rates to the permanent labor certification requirements for employment-based (EB) green cards in the EB-2 and EB-3 preferences. This rule also did not alter any substantive eligibility criteria or otherwise affect the number of visas that could be issued under these programs.
The administration’s failure to implement these critical reforms underscores its unwillingness to prioritize the interests of both U.S. and foreign workers over those of profit collectors and outsourcing companies. Current DHS and DOL policies put American workers last, allow the visa programs to suppress wages, and do very little to protect high-skilled foreign workers seeking to contribute to the U.S. economy.