The Trump Administration announced an interim final rule that strengthens the H-1B program in an effort to protect U.S. workers, restore the program to its intended purpose and ensure that petitions are approved only for qualified employers and foreign workers. Known for its rampant fraud, the H-1B program has in the past served to displace and reduce the wages of American Science, Technology, Engineering and Mathematics (STEM) workers.
The rule adjusts wage levels for H-1B and E-3 visas to better reflect the wages paid to similarly employed U.S. workers. It significantly increases the prevailing wage rate that employers must pay foreign workers in the H-1B program and the EB-2 and EB-3 classifications. Employers must attest that they will pay nonimmigrant workers the higher of the prevailing wage or the actual wage paid to other employees with similar experience and qualifications. This removes one economic incentive for hiring foreign workers over American workers.
The definition of “United States employer” is strengthened under the rule to stop the practice of outsourcing firms stockpiling foreign workers that they subsequently contract out. And it strengthens the definition of “employer-employee relationship” to close loopholes that allow staffing and outsourcing companies, and their shadow-employer clients, to use the H-1B program as a source of low-cost foreign labor at the expense of U.S. workers. Plus it limits the petition validity period for third-party placement cases to a maximum of 1 year.
The rule changes the definition and criteria for a “specialty occupation” by clarifying that a position must require a degree in a specific specialty. And it requires evidence of actual work in a specialty occupation.
Finally, DHS’s authority to conduct inspections, including site visits, is codified under the rule and extended to visits to third-party worksites. Failure by a petitioner or third-party to fully cooperate with inspections can result in denial or revocation of the H-1B petition.
Read the White House fact sheet.
Updated: Wed, Oct 21st 2020 @ 4:15pm EDT