Earlier this year, the Department of Homeland Security (DHS) published a proposed revision to the H-1B visa program. This revision, if it goes into effect, could have a substantial impact on the H-1B program in 2020 and beyond, particularly for those business-services and outsourcing firms that rely heavily on the visa.
If enacted, the proposal would revise of the definition of “specialty occupation” to 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.” On top of that, “DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”
The purpose of this shift, the proposal added, is “to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation.” In other words, the changes would ensure “the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.”
A H-1B visa data-dump from the U.S. Department of Labor showed that job titles such as “software developer” and “software engineer” are the most widely used for H-1B candidates; the average salary for all H-1B workers, according to the same database, is $89,779. At first glance, though, it’s hard to argue that generic “developer” and “engineer” roles are so highly specialized that they require a company to source an H-1B worker from overseas. The other most-used titles are similarly broad:
Given this reliance on using the H-1B program to source “engineers,” “developers,” and “analysts,” this proposed rule could have a seismic effect on companies’ ability to source workers who can’t demonstrate some high degree of specialization. Companies are already facing far greater scrutiny over how they use the H-1B, with a skyrocketing rate of denials and additional Requests For Evidence (RFEs); the denials are hitting subcontracting and outsourcing firms, which often send developers and engineers to client firms, particularly hard.
“At least 12 companies that provide professional or IT services to other U.S. companies, including Accenture, Capgemini and others, had denial rates over 30 percent through the first three quarters of FY 2019,” read a recent report (PDF) by the National Foundation for American Policy (NFAP). “Most of these companies had denial rates between 2 percent and 7 percent as recently as FY 2015.”
In conjunction with other proposed changes (including a crackdown on H-4 EAD, which allows the spouses of H-1B visa holders to work), any alteration to “specialization” means that the H-1B program could look very different by the time Trump leaves office. “Undoubtedly [the Trump administration] will push the boundaries and aim for long-term, structural changes to the H-1B visa category,” said Lynden Melmed, a partner at Berry Appleman & Leiden and former Chief Counsel for USCIS, recently told Forbes.
But that also depends on these changes actually going through. Many outsourcing and consulting firms have begun filing lawsuits against the federal government over the latter’s H-1B moves, and the H-4 EAD proposal is currently mired in a legal battle. “Lots of people are unhappy with how the agency is adjudicating the applications and they feel like they have to turn to the courts for fair adjudication because the agency is failing them,” Jill Family, an immigration law professor at Widener University, recently told Mother Jones. The outcome of those legal cases may ultimately decide just how restrictive the H-1B process ultimately becomes—and how the federal government defines “specialization.”
