October 29, 2020
The U.S. Department of Homeland Security has announced it will replace the H-1B visa lottery, in which foreign citizens with college degrees compete for limited slots, with a wage-based selection process prioritizing higher salaries. According to the Department’s announcement, “Prioritization and selection based on wage levels better balances the interests of petitioners, H-1B workers, and U.S. workers. The changes proposed … would maintain the effective and efficient administration of the H-1B cap selection process while providing some prospective petitioners the ability to potentially improve their chance of selection by agreeing to pay H-1B beneficiaries higher wages that equal or exceed higher prevailing wage levels”.
According to the Department, modifying the H-1B cap selection process in this way will incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.
“With this proposed rule, the Trump administration is continuing to deliver on its promise to protect the American worker while strengthening the economy. The H-1B program is often exploited and abused by U.S. employers, and their U.S. clients, primarily seeking to hire foreign workers and pay lower wages,” said Acting DHS Deputy Secretary Ken Cuccinelli. “The current use of random selection to allocate H-1B visas makes it harder for businesses to plan their hiring, fails to leverage the H-1B program to truly compete for the world’s best and brightest, and hurts American workers by bringing in relatively lower-paid foreign labor at the expense of the American workforce.”
This effort would only affect H-1B registrations submitted by future petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but would not change the order of selection between the two.
The H1B visa program is the main way that America competes with other countries for specialty foreign workers who come to fill in vacancies in the work force. The program has recently been under attack for ostensibly undercutting the wages of domestic workers. Under the current program, however, the U.S. employer who seeks to engage a foreign worker is required to pay that applicant the prevailing wage rate as determined and published by the Department of Labor through regular salary surveys in the marketplace throughout the country. One of the complicating factors of this system is that any particular position may require individuals with varying experience and thus the prevailing wage rate depends on the level of seniority the employer requires. Senior workers will be paid higher wages while junior workers will be paid lower ones. This is more a problem of the way the prevailing wages are determined by the Department of Labor than it is about foreign workers coming to America to undercut domestic worker salaries. Raising the wage rates as contemplated may be attractive to more high skilled foreign workers, but may not solve the problem of filling much needed positions in the workforce since such wages may not be affordable to employers, who instead, may hire such workers online overseas at lower rates.
The Department will open a public comment period once the proposed regulation is published in the Federal Register. Interested parties will have 30 days to submit comments relevant to the proposed rule and 60 days to submit comments relevant to the proposed information collection.