The Department of Homeland Security has not implemented its new rule yet, but has defined it:
The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
The crux of the DHS argument is the definition of “specialty occupation,” and who the “best and brightest” are. Speaking with Forbes, Dagmar Butte, a partner at Parker, Butte & Lane, said: “The drumbeat of an H-1B being intended to only bring the best and the brightest has been incessant the last three years or so. The problem is, of course, that was not the purpose of the H-1B and we already have a temporary visa for that – the O-1.”
An O-1 visa is defined by the U.S. Citizenship and Immigration Services (USCIS) as a “nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.”
Butte’s argument holds, but national or international recognition for achievements is incongruous with why tech companies hire under H-1B.
Other wordplay in the DHS definition suggests H-1B is under attack for the right reasons. Re-defining the employer-employee relationship could mean large companies will soon have to hire directly rather than rely on overseas clearinghouses for potential H-1B hires. When hiring several (sometimes hundreds) of H-1B employees, companies often do so through overseas companies meant to streamline the process. Going forward, DHS may require that companies such as Google or Facebook have a unique relationship with each hire before they’re actually brought stateside.
The “specialty occupation” designation is also a favorite target of the DHS and Trump administration. It seems DHS would like to distill what is (and isn’t) a speciality occupation to an official definition or wiki for job titles and skill-sets. Currently, the USCIS definition for a specialty occupation is loose:
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
If DHS is simply limiting the number of general tech hires that companies can make under H-1B, most would likely applaud this solution. With so many finding their way to tech education, and experienced engineers and developers seeking employment, many would rather see domestic talent get jobs first.
When the USCIS initiated its ‘specialty occupation’ missive, it said: “The updated policy guidance aligns with President Trump’s Buy American and Hire American Executive Order and the directive to protect the interests of U.S. workers.” Now it’s narrowing its scope of what ‘specialty’ means, effectively putting companies reliant on H-1B in a chokehold. This, along with a separate plan to limit the ability of H-1B spouses to find work, may spur the opposition – which is already robust – into action.