The public comment period ended on Nov. 24 for a rule proposed by the Department of Homeland Security to change the selection process of H-1B visas, which allow foreign professionals, such as graduating international students, to work in the U.S.
The H-1B program allows U.S. employers to register a petition for a worker whose job requires a bachelor’s degree or the equivalent to stay in the U.S. for an initial three-year period that can be extended later, according to U.S. Citizenship and Immigration Services. Ruby Powers, an immigration attorney with Powers Law Group, said now that the public comment period is over, the agency will begin to review the public’s comments before determining the new selection process.
“We’ll all be on pins and needles to figure out what’s going to happen, and how we’re going to pivot,” Powers said. “There’s a hypersensitivity to what’s happening in this space.”
Aside from certain cap-exempt employers, there is an annual limit of 65,000 new H-1B visas issued each year, with an additional 20,000 reserved for workers with a master’s degree or higher from a U.S. institution, according to the agency. If the number of registrations exceeds the numerical cap, the agency uses a lottery system to select which registrations can continue to the petition stage, according to the National Immigration Forum, an immigrant advocacy group.
Under the proposed rule, the agency would use a weighted selection process for H-1B visas based on applicants’ level of experience through the Occupational Employment and Wage Statistics program data, which categorizes employee’s experience and salary into four wage levels, according to the forum.
H-1B visa registrations at wage level I, which are considered entry-level, would be entered into the lottery once, whereas registrations at wage level IV, which are considered advanced experts would be entered to the lottery four times, according to the forum.
“Across different fields of study, regardless of pay, entry-level professions will be highly disadvantaged,” Laurence Benenson, vice president of policy and advocacy for the National Immigration Forum. “That is going to be a direct hit to the ability of companies to hire entry level individuals, including recently graduated international students.”
President Donald Trump announced a $100,000 fee with H-1B visa applications in a September proclamation, which drew a lot of attention to the H-1B program, Powers said. The fee will not be subjected to those already in the U.S. on a nonimmigrant status applying for a change to the H-1B status, including international students, according to the agency.
Immigration attorney Jason Finkelman said a common misunderstanding is that the H-1B program is used by employers to get cheap labor. However, this is prevented through a federal regulation requiring employers to pay foreign workers the prevailing wage rate, which is “the average wage paid to similarly employed workers in a specific occupation,” according to the U.S. Department of Labor.
“The H-1B visa is probably the most regulated and strict temporary work visa program in the United States, and is set up, and has always been set up, in a manner to protect American workers,” Finkelman said.
