DHS and DOL to Heighten Immigration Standards
By Alex Carter
On December 7, 2020, new Department of Homeland Security (DHS) and Department of Labor (DOL) guidelines are scheduled to take effect with the goal of reducing legal immigration to the United States. The new guidelines, released on October 8, 2020, raise the hiring standards and minimum wages for H-1B Visa holders.
H-1B Visas are a particular type of visa issued by U.S. Citizenship and Immigration Services (USCIS). USCIS reserves them for high-skilled workers whose job requires “a body of highly specialized knowledge.” A maximum of 85,000 H-1B Visas are approved each year. These visas are granted through a lottery system since the number of applicants exceed the number of available visas. H-1B visas are typically granted for a three-year period with the option to reapply at the end of that period. Employers submit petitions on behalf of the potential H-1B recipient.
The new guidelines narrow the definition of a “specialty occupation” to require both specialty knowledge and a bachelor’s degree or higher. This replaces a rule that potentially allowed either one qualification or the other, but not both. The new guidelines also expand USCIS’s power to investigate workplaces for potential H-1B fraud, among other changes.
The DHS guidelines were coupled with a new DOL rule, raising the required wages paid to H-1B employees. On its website, DOL said its purpose of this new rule is to ensure that immigrant and nonimmigrant workers admitted through programs, such as the H-1B visa, do not affect the job opportunities and wages of US workers.
The DOL mandates wage requirements based on the Occupational Employment Statistics survey conducted by the Bureau of Labor Statistics. The DOL identifies four skill levels that apply to every occupation within the U.S.: Entry, Qualified, Experienced, and Competent-Supervisory.
The new guidelines are expected to result in a higher rejection rate for H-1B visa applications. According to reporting by the Wall Street Journal, Ken Cuccinelli, Senior Official Performing the Duties of the Deputy Secretary for the Department of Homeland Security, expects about a third of applications to be rejected under these higher standards.
The Economic Impact of H-1B Restrictions
The Trump administration’s goal is to “make sure the American worker is put first,” Chad Wolf, Acting Secretary of Homeland Security, said in a statement on the DHS website.
However, Britta Glennon, an economist specializing in immigration and innovation at Wharton, said it is not clear that these rules will serve this purpose.
“[Immigration restriction] is supposed to make it harder for [companies] to hire foreign workers and make it easier for them to hire American workers,” Glennon said. “But what it’s much more likely to do is offshore those jobs entirely. At a certain point, companies just get fed up with the process.”
According to Glennon’s research, a decline in H-1B visa approvals leads to an increase in offshoring. Large corporations can relatively easily offshore jobs in response to rule changes. Meanwhile, smaller firms may be unable to adapt and will choose to opt-out entirely.
“It takes a lot of money both to hire the lawyer and to file the application. So [small firms] will only do that if they really need that person,” Glennon said. “As it becomes more difficult, the only ones able to navigate the system are the larger firms.”
Glennon criticized DHS's premise that H-1B visas trade-off directly with domestic employment.
“There have been hundreds of papers studying this exact question - ‘Do H-1B visas take American jobs?’ There are a handful that have found small negative effects. The vast majority of them find nothing,” Glennon said.
Immigration Restrictions Based on COVID-19 Concerns
The new guidelines are part of a series of changes to the U.S. immigration system since the beginning of the COVID-19 pandemic. President Trump signed an executive order on April 22, 2020, blocking most visa holders from entering the United States for 60 days, citing the COVID-19 crisis.
On June 22, 2020, President Trump signed Presidential Proclamation10052, halting the entry of all H-1B, L1, and J1 visa holders to the United States through the end of the year on public health grounds.
Evangeline Abriel, a clinical professor at Santa Clara University School of Law who focuses on immigration, said she thinks the public health rationale for immigration restrictions is in bad faith.
“There are so many other ways that you could protect against [COVID-19] that wouldn’t go the full length of precluding people from entering,” Abriel said.
COVID-19 has affected the immigration system beyond providing a basis for new rules. Da’Niel Rowan, a lawyer at Fragomen, a firm specializing in immigration law, said that the June restrictions were less meaningful in the pandemic context.
“It’s got a lot more bark than it does bite,” Rowan said. “At that point [when the June restrictions were passed], we were already knee-deep in COVID, we already had travel from country to country restricted. That impacted a lot of people,” Rowan said.
Since the U.S. consulates in many countries are closed, it is difficult for potential immigrants to receive their necessary visa stamp. Decisions to close U.S. consulates are made on a case-by-case basis, but important consulates, like the consulate in India, are closed.
“If you can’t get a consular appointment and you can’t get a stamp, you can’t enter the U.S. anyway,” Rowan said.
Legal Challenges
Several of the Trump administration’s immigration policies have been successfully challenged in the court system. On August 12, 2020, Proclamation 10052 was partially rolled back by creating additional exemptions to the ban based on national interest.
On October 2, 2020, a federal judge issued a partial injunction that blocked the executive order, but only for the companies which challenged the ruling. The most recent DHS regulations are also expected to be challenged in court, possibly resulting in an injunction before they can take effect.
Rowan said that future legal challenges to the rules would depend largely on who wins the election.
“Particularly after the election, depending on the result, that might determine people’s decision to drive forward,” Rowan said.
(Editor's Note: This article was originally published in the October 2020 [Volume 51, Issue 1] edition of The Advocate.)