Administration Publishes Massive Changes to H-1B Selection
FAIR Take | January 2021
On January 7, the Trump Administration announced the publication of a new federal rule changing the way in which U.S. Citizenship and Immigration Services (USCIS) distributes H-1B certifications. This rule, if it survives inevitable legal challenges, would be a massive win for American white-collar workers.
The H-1B guestworker visa allows American companies to temporarily hire skilled guestworkers in white collar positions. Intended to help American companies fill needed vacancies, it has become instead a controversial means by which powerful technology companies and Fortune 500 firms hire cheaper temporary workers. Studies show that H-1B workers earn far less than Americans working the same jobs.
The rule, titled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions,” changes the process by which employers receive cap-exempt H-1B worker petitions. Under the current rules, these certifications go out randomly, with no regard for skill level, petitioned role, or level of education. Under the current rules, an exceedingly average accountant with a wage of $56,000 is just as likely to receive an H-1B certification as is a neuroscientist with multiple advanced degrees with a wage well in the six figures.
This rule essentially changes this by ordering the certification applications from highest offered salary to the lowest, and then distributes the available certifications from the highest salary on down. Indeed, the Department of Homeland Security’s (DHS) own summary reads that:
DHS is amending its regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for the filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended), by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment.
In a press release, USCIS states that “Modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.” This is something that FAIR has advocated for many years. For too long, employers abused the H-1B program as a way to import cheap and compliant guestworkers instead of hiring Americans.
This rule change, assuming it survives litigation, is a massive victory for American workers at the expense of the interests of Big Tech and corporate lobbyists. It will naturally increase the cost of hiring H-1B workers, which can only protect Americans from labor displacement. FAIR applauds this as an example of positive reform towards the broken H-1B guestworker program.