Trump Administration Issues Draft Rule on H-1B Guest Worker Visas to Prioritize Higher-Wage Applicants

October 29, 2020 Updated: October 29, 2020

The Department of Homeland Security (DHS) on Oct. 27 published a proposed rule change to the H-1B guest worker program, seeking to replace the random, lottery-based system with a hybrid arrangement that prioritizes higher-wage applicants.

The DHS stated in a modified draft rule on registration requirements for people seeking to file H-1B petitions (pdf), which will be opened for public comment once published in the Federal Register, that it would give top priority to applicants “based on the highest Occupations Employment Statistics (OES) prevailing wage level.”

“Congressional intent behind creating the H-1B program was, in part, to help U.S. employers fill labor shortages in positions requiring highly skilled or highly educated workers,” the DHS stated, adding that the high number of applications means that a purely lottery-based system is misguided.

“Pure randomization does not serve the ends of the H-1B program or congressional intent.”

The new wage criterion would first be applied to the regular cap selection and then for the advanced degree exemption, for the approximately 85,000 H-1B guest worker visas that are issued each year.

“Put simply, because demand for H-1B visas has exceeded the annual supply for more than a decade, DHS prefers that cap-subject H-1B visas go to beneficiaries earning the highest wages relative to their [Standard Occupational Classification] codes and area(s) of intended employment,” the draft rule states.

The DHS said in the draft that the change “would maximize H-1B cap allocations, so that they more likely would go to the best and brightest workers.”

“This is the latest example of President Trump and this administration continuing to take visionary steps to reform the immigration system in ways that protect American workers while also benefiting the economy,” a senior DHS official told Fox News.

It comes after the White House announced on Oct. 6 that the Trump administration was taking action to tighten foreign worker visa requirements in a bid to protect American workers.

“No one can compete with American workers when they’re given a fair and level playing field, which has not happened for decades,” President Donald Trump said in a statement.

The White House said at the time that the DHS was “tightening standards to require that foreign workers show specialized merit to establish their eligibility,” with the new draft rule an apparent outcome of this process.

Another action taken by the Trump administration was for the Department of Labor to issue a rule that changed the methodology by which a “prevailing wage” was set, as a way to ensure that people hired via the H-1B program don’t undercut the wages of American workers.

“The rule will limit an employer’s ability to replace workers with cheap foreign labor and help ensure wages are not suppressed by the presence of low-cost foreign workers,” the White House said in a statement.

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