A proposed revamp of the H-1B visa program is underway, although its specifics remain under wraps. The Department of Homeland Security (DHS) has submitted notice of the adjustment to the Office of Management and Budget (OMB) for review, under the title: “Strengthening the H-1B Nonimmigrant Visa Classification Program.”
In the accompanying abstract, DHS states that it wants 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.” On top of that, DHS also wants to implement “additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”
The abstract also states that the move will be “economically significant.” Changing the definition of “specialty occupation” could prove a very big deal, as it would potentially restrict companies to only using the H-1B to source unique and hard-to-find talent from overseas. That could impact the business-services and outplacement firms that utilize massive numbers of H-1B visas to secure software developers, engineers, and other technologists with relatively commonplace skillsets.
Although the specifics are under wraps, that didn’t stop Fragomen, a law firm specializing in immigration law, from hypothesizing in a blog post about the changes’ potential impact on the H-1B: “This could lead to a requirement that H-1B employers and end clients jointly obtain labor condition applications (LCAs) for H-1B workers at client sites. A joint LCA requirement could create de facto joint employer liability for compliance with obligations concerning H-1B wages and working conditions. The regulation could also address other aspects of H-1B wage requirements.”
Any such regulation could also force companies to hire technologists who are U.S. citizens, which has been a longtime goal of the Trump administration’s H-1B actions. Hal Salzman, a professor of planning and public policy at Rutgers University, recently re-emphasized that there’s more than enough talent coming from U.S. universities to power tech companies’ needs: “Are we to believe the talent these companies are looking for is so extraordinarily rare and greater than doctoral scientists? Or engineers?”
The proposed DHS revamp suggests that Trump’s executive order temporarily banning H-1Bs won’t become permanent (although the situation could always change). Over the past few years, various tweaks to H-1B policy, including a substantial adjustment to fees, has led to a rising rate of application and renewal denials. Changing the definition of “specialty occupation,” however, could end up having an even larger impact on how tech firms utilize the visa.