H-1B Rule Expected Later This Year, Immigration Restrictions Possible

U.S. Citizenship and Immigration Services is expected to publish a final rule on H-1B visas that could bring significant changes to employers. Many attorneys and businesses interviewed hope in the final rule Biden administration officials will correct provisions considered problematic. Among the provisions are H-1B measures—identical to those proposed in a failed Trump administration rule—that critics say undermine President Biden’s objectives to develop AI and the U.S. semiconductor industry. The Timing Of The H-1B Rule On October 23, 2023, U.S. Citizenship and Immigration Services published a notice of proposed rulemaking. The rule was subject to a 60-day comment period and has yet to be finalized. “The rule has not made it to the Office of Management and Budget yet for review, and then there would be the normal delayed effective date after it is published,” according to a former government official. “All signs point to it being published late in the year, possibly even after the election.” PROMOTED The Most Controversial Provisions In comments to the rule, the National Foundation for American Policy highlighted the most controversial proposed restrictions. First, using the phrase “directly related specific specialty,” USCIS would narrow the positions considered specialty occupations. According to the proposed rule, to qualify as a specialty occupation, the position must require “A U.S. baccalaureate or higher degree in a directly related specific specialty or its equivalent” for entering the occupation. A Trump administration restrictive interim final rule, which courts later blocked, used identical language on ‘directly related.” In 2020, attorneys and companies warned the (Trump administration’s) interim final rule’s wording would prevent many talented foreign-born professionals from working in America. (See here.) MORE FROMFORBES ADVISOR Best High-Yield Savings Accounts Of 2024 ByKevin PayneContributor Best 5% Interest Savings Accounts of 2024 ByCassidy HortonContributor The Immigration and Nationality Act (INA) does not state a degree must be in a “directly related” specific specialty. More than half (51%) of U.S.-born individuals and 18% of temporary visa holders employed in computer occupations possess degrees other than computer science or electrical engineering, according to an NFAP analysis of the 2021 National Survey of College Graduates. Almost half (48%) of chemists possess a degree other than chemistry. CEO: C-suite news, analysis, and advice for top decision makers right to your inbox. Email address Sign Up By signing up, you agree to receive this newsletter, other updates about Forbes and its affiliates’ offerings, our Terms of Service (including resolving disputes on an individual basis via arbitration), and you acknowledge our Privacy Statement. Forbes is protected by reCAPTCHA, and the Google Privacy Policy and Terms of Service apply. symbol 00:00 03:12 Read More Second, the proposed rule also copied language from the Trump administration to assert that business administration is a “general degree” and insufficient to qualify for a specialty occupation “without further specialization.” That could prevent foreign nationals with a master’s in business from gaining H-1B status and reduce the number of international students enrolling in MBA programs at U.S. universities. The proposed rule cites the physical sciences as a qualifying body of specialized knowledge. However, examining one to ten years after a degree, NFAP found a far lower percentage of individuals with a master’s degree in physical sciences work in a physical sciences occupation than those with master’s degrees in business work in management and management-related occupations. Analyzing The Comments In comments to the rule, employers and university groups expressed uniform opposition to the “directly related” language and labeling business administration a general degree. A comment letter signed by 74 business, university, science and state and local economic development organizations declared, “The new ‘directly related’ degree mandate must be abandoned.” The signees included the U.S. Chamber of Commerce, TechNet, the Compete America Coalition, the Association of American Universities, NAFSA, the Presidents’ Alliance on Higher Education and Immigration, FWD.us, the National Immigration Forum, the American Immigration Lawyers Association and others. Those groups also submitted separate comments. (See links above.) The letter and many other comments noted the restrictions in the proposed rule were incompatible with attracting AI talent and President Biden’s AI executive order issued on October 30, 2023. “By definition, employees seeking to fill roles supporting emerging technologies such as Artificial Intelligence, may not have a ‘directly related’ degree,” according to a comment submitted by Amazon. “Rather, these employees or candidates may have a degree with a name that does not appear to be directly related to AI, when they have, for example, completed extensive AI coursework that allows them to gain highly specialized knowledge.” Commenters, including the Presidents’ Alliance, cited NFAP Senior Fellow Mark Regets, who said, “It is a common mistake to think there is an exact correspondence between field of degree and occupation in the technical labor force. In reality, employers often hire workers who have gained the necessary skills through other coursework and experience.” Regets and others believe many current H-1B visa holders might not meet the new criteria. In 2020, in InspectionXpert Corp. v. Cuccinelli, a judge rejected the USCIS argument during the Trump administration that it could deny an H-1B petition because the position did not require a degree in a specific subspecialty and an individual with a degree in more than one discipline, such as different types of engineering degrees, could fill it. The proposed rule resurrects the Trump team’s restrictive interpretation. The proposed rule’s attempt to exclude individuals with degrees in business administration from H-1B eligibility also raised concerns. “As the top recruiters of Master of Business Administration talent in the U.S., BCG and Bain dispute the agency’s characterization of a business administration degree as a general degree,” noted the Boston Consulting Group and Bain & Company. Other Areas Of Concern Many commenters objected to the proposed rule’s new measures on third parties (typically a customer’s location). “We . . . urge DHS to remove language that directs USCIS to look to a third-party’s requirements for an H-1B beneficiary’s position rather than the petitioner’s stated requirements,” wrote TechNet, the Information Technology Industry Council and the Semiconductor Industry Association. “DHS proposes to create a new standard of bona-fide employer, employer-employee relationship, and job offer mandating client validation and contracting terms that are not standard business frameworks.” Commenters were also worried about the rule’s language on site visits. “We are seriously concerned that the new policy would give extraordinary authority to officers to enter places of business, even individuals’ private homes, without advance warning or authorization,” wrote FWD.us. “They would be allowed to invalidate large numbers of visas simply because an employee at a company does not or cannot comply with agents’ requests.” The comment pointed out that “company representatives at third-party sites could be asked to turn over sensitive information about individuals who are not even their direct employees.” “The proposal to codify USCIS’s authority to conduct site visits is ultra vires [beyond one’s legal authority] because . . . USCIS lacks the authority to conduct immigration-related investigative and intelligence-gathering activities,” according to attorneys Vic Goel, Angelo Paparelli and Youngwook (Christian) Park. Favorable Changes And Looking Ahead USCIS received 1,315 comments, with many expressing support for the agency’s changes to the H-1B lottery aimed at discouraging multiple registrations for the same individual. That rule was published separately. Several commenters asked USCIS to address the long waits for employment-based green cards, including by ensuring new restrictions did not apply to extensions. Employers and university groups cited measures they supported in the rule. These proposed changes included the reforms to the H-1B registration selection process, extending “cap-gap” protections for F-1 students “when changing to H-1B status,” allowing more organizations to qualify as H-1B cap-exempt nonprofit research institutions, greater leeway for H-1B visa holders to become entrepreneurs and codifying “deference” for prior findings of fact when adjudicating applications. USCIS officials and others believe codifying deference could improve operations and prevent a future administration from upending business immigration. Trump officials ended deference to prior findings of fact, which resulted in a significant increase in denials for H-1B extensions, causing many longtime employees of companies to leave the United States when USCIS adjudicators rejected their applications. Shev Dalal-Dheini, senior director of government relations at the American Immigration Lawyers Association, worked on regulations for over a decade at USCIS. “My experience is sometimes the practical application of a policy decision is missed until we get those comments,” she said. “And when those comments are received, it really helps shine a light and explains that you would be keeping this person out or why this would be a bad choice.” She thinks the Biden administration is much more likely than the Trump administration to take into serious consideration the comments that people have submitted. “USCIS is committed to the president's goal of restoring faith in the legal immigration system and attracting global talent,” said a USCIS spokesperson. “USCIS will continue to promote policies and procedures that attract the best international talent, expand economic prosperity, maintain America’s competitive edge in STEM fields and uphold the country’s promise as a nation of welcome and possibility with fairness, integrity and respect for all we serve.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.