Trump Admin’s Proposed Policy Entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program” Set to Target the H-1B Program

Bloomberg recently reported that the Administration plans to remodel the H-1B program eligibility criteria from a baccalaureate degree to a discretionary “Best and Brightest” requirement, perhaps more in line with the O-1 Extraordinary Ability program.  This would impose substantial and new burdens on H-1B seekers, particularly on IT professionals, and effectively change the H-1B program as we know it.

“The Trump administration plans to narrow the definition of specialty occupation to limit the use of H-1B visas, but it may be limited in how far it can go.

A proposal expected in January from the U.S. Citizenship and Immigration Services would refine the meaning of specialty occupation “to focus on obtaining the best and the brightest foreign nationals via the H-1B program.”

The proposed regulation “would be the biggest changes to the H-1B program since 1990,” when the visa was overhauled by Congress, Sarah Pierce, a policy analyst with the Migration Policy Institute, told Bloomberg Law.

The agency could block entry-level jobs from the program while redefining “employer-employee relationship” to severely curtail staffing companies’ access to the visas.”

Inserting the otherwise innocuous phrase “Best and the Brightest” (“B&B”) within this proposed rule does nothing to alleviate the suspicion with which it is met.  This is understandable, considering that for the last 1.5 years this Administration has tasked USCIS with issuing “pop goes the weasel” style policy changes and multiple “reinterpretations” of existing laws and guidance.  The ultimate result has been a targeted effort to reduce the use of H-1Bs visas by Indian IT professionals and their employers.  IT jobs paying Level 1 prevailing wages and common occupational classifications such as Computer Programmers and Computer Systems Analysts now face an almost automatic presumption of ineligibility.  Third-party job site consulting assignments are scrutinized more heavily and are more likely to be denied.  Deference is no longer given to extensions of previously approved H-1B cases, even if there have been no changes in employment.  The standard of evidence in filing H-1Bs seems to have risen overnight from the “Preponderance of the Evidence” to “Beyond a Shadow of a Doubt”.

As a result of USCIS’s recent changes to the H-1B program, Requests for Evidence and denial rates for IT workers have increased nationwide.  But this new proposed policy promises to make matters even worse, if that’s possible.

View Rule: Strengthening the H-1B Nonimmigrant Visa Classification Program

 

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