H-1B ‘Specialty Occupation’ Proposal Could Change Visa Forever

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Earlier this year, the Department
of Homeland Security (DHS) published a proposed revision to the H-1B visa
program. This revision, if it goes into effect, could have a substantial impact
on the H-1B program in 2020 and beyond, particularly for those
business-services and outsourcing firms that rely heavily on the visa.

If enacted, the
proposal
would revise of the definition of “specialty occupation” to 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 will
propose additional requirements designed to ensure employers pay
appropriate wages to H-1B visa holders.”

The purpose of this shift, the proposal added, is “to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation.” In other words, the changes would ensure “the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.”

A H-1B visa data-dump from the U.S. Department of Labor showed that job titles such as “software developer” and “software engineer” are the most widely used for H-1B candidates; the average salary for all H-1B workers, according to the same database, is $89,779. At first glance, though, it’s hard to argue that generic “developer” and “engineer” roles are so highly specialized that they require a company to source an H-1B worker from overseas. The other most-used titles are similarly broad:

Given this reliance on using the H-1B
program to source “engineers,” “developers,” and “analysts,” this proposed rule
could have a seismic effect on companies’ ability to source workers who can’t
demonstrate some high degree of specialization. Companies are already facing
far greater scrutiny over how they use the H-1B, with a skyrocketing rate of
denials and additional Requests For Evidence (RFEs); the denials are hitting
subcontracting and outsourcing firms, which often send developers and engineers
to client firms, particularly hard.

“At least 12 companies that provide professional or IT services to other U.S. companies, including Accenture, Capgemini and others, had denial rates over 30 percent through the first three quarters of FY 2019,” read a recent report (PDF) by the National Foundation for American Policy (NFAP). “Most of these companies had denial rates between 2 percent and 7 percent as recently as FY 2015.”

In conjunction with other proposed
changes (including a crackdown on H-4 EAD, which allows the spouses of H-1B
visa holders to work), any alteration to “specialization” means that the H-1B
program could look very different by the time Trump leaves office. “Undoubtedly [the Trump
administration] will push the boundaries and aim for long-term, structural
changes to the H-1B visa category,” said Lynden Melmed, a partner at Berry
Appleman & Leiden and former Chief Counsel for USCIS, recently
told Forbes
.

But that also depends on these changes
actually going through. Many
outsourcing and consulting firms have begun filing lawsuits against
the federal government

over the latter’s H-1B moves, and the H-4 EAD proposal is currently mired in a
legal battle. “Lots of people are unhappy with how the agency is adjudicating
the applications and they feel like they have to turn to the courts for fair
adjudication because the agency is failing them,” Jill
Family
, an immigration
law professor at Widener University, recently
told Mother Jones
. The
outcome of those legal cases may ultimately decide just how restrictive the
H-1B process ultimately becomes—and how the federal government defines
“specialization.”

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