The Trump Administration’s latest restrictions on workplace immigration will fall on people already working in Silicon Valley and elsewhere on H-1B visas, not just those seeking to enter the country via the prized work permits and pursue new jobs.
H-1B visas, issued to help companies find workers with specific skills, must be reauthorized under a set of common circumstances. And those existing visas, not just newly issued ones, will be subject to new requirements that narrow eligibility for “specialty occupations” and, according to one analysis, substantially increase the minimum salary level to $208,000.
Times when workers could hit the new obstacles include: when they renew their H-1Bs, as required after three years, after six years, and then annually; if they apply for a green card; if they get a new job offer; if they receive a promotion; and if they change their work location — including returning to the office after working from home, something that will happen often as the pandemic continues.
“Ultimately this will affect 100% of H-1B visa holders,” said Liz Stern, a partner and head of the immigration practice at Mayer Brown in Washington, which this week filed an amicus brief on behalf of Twitter and other companies in a lawsuit brought by the U.S. Chamber of Commerce, the Bay Area Council and many business groups challenging the new rules. “It is disenfranchising H-1B workers from continuing to work.”
The new regulations are intended to prevent American workers from being displaced by cheaper overseas counterparts. The U.S. Department of Homeland Security and the U.S. Labor Department, which issued the new regulations, did not immediately respond to requests for comment.
“Our view is that this gets the H-1B program back to its original intent — to give American business access to unique talent, people whose skills and abilities are not easily replicated in this country,” said Ira Mehlman, a spokesman for the Federation for American Immigrant Reform, which seeks to curb immigration. “Over the years it has become a program under which companies are bringing in people whose skills and talents are easily matched by people here in the U.S.”
But critics of the changes say the rules, issued a month before the election, appear politically motivated.
Immigration advocates point out that despite the massive waves of pandemic unemployment, the job market remains tight in the highly skilled tech occupations that rely on H-1Bs. Unemployment for computer occupations actually fell from 3% in January to about 2.5% in September, the Mayer Brown amicus brief said.
The new rules seem intended “to price H-1B visa holders and potential green card recipients out of the U.S. labor market by inflating the salaries employers are required to pay,” said an analysis by the National Foundation for American Policy.
Stuart Anderson, executive director of the foundation, said it found that the new minimum mandate will be $208,000, or $100 an hour, for thousands of occupations and geographies, including software developers, the most common occupation among people applying for employment-based green cards.
Even in well-paid Silicon Valley, that’s a stretch. A San Jose area employer would need to pay a top-level electrical engineer 53% more than the market wage shown in private wage surveys, the analysis said — nearly $85,000 extra in annual salary. And the same salary would be required in other areas — such as Battle Creek, Mich.; Lebanon, Penn.; Reno and Merced — where wages are much lower.
“They distorted the definition of prevailing wage,” Anderson said. “It doesn’t seem based on anything. They decided ahead of time that they would radically boost the salaries without any regard to what the actual salaries are.”
Besides the personal toll on workers who potentially could lose their jobs and have to leave the U.S. after years here, the impact will also be harsh on the companies that rely on them.
“It puts companies in an awful spot,” said Kevin Miner, an immigration attorney in Atlanta. “They can’t just go and increase their H-1B workers’ salaries, because then they’d be making a lot more than American workers. What many companies will end up having to do is move out of the U.S. as a result of this.”
Many other companies will face the disruption of losing long-term valued employees and having to recruit and train replacements, Stern said.
“These rules will stifle the ability of American companies to hire and retain global talent,” Twitter’s public policy team tweeted Friday. “Not only is the H-1B visa program critical to driving American economic growth and innovation, it also enhances our diversity as a company and as a nation.”