Does the proposed new H-1B rule conflict with current law?

On Behalf of | Feb 12, 2019 | Business Immigration

H-1B visas are the vehicle for thousands of foreign-born workers to legally find high-skilled work in the U.S. every year. Most of them work in the STEM fields (science, technology, engineering and math), where American employers grapple with worker shortages.

The U.S. Citizenship and Immigration Services (USCIS) now proposes to change the way they handle H-1B visa petitions. Some argue the proposed changes conflict with current immigration law.


Changing priorities

The Trump administration has been arguing for and implementing changes to many areas of immigration law, and H-1B visas are no exception. After three months in office, President Trump signed the “Buy American and Hire American” executive order, which stated that the priority should be hiring Americans first, as well as seeking more workers with graduate degrees, while reducing the number of entry-level jobs H-1B visa holders can qualify for.


Part of the administration’s proposed solution includes a change to the H-1B lottery system. The current lottery, held each April, allows 65,000 regular cap H-1B visas, plus another 20,000 visas for people with a master’s degree or higher from a university in the U.S.

The law states that the lottery must select the 20,000 Master’s exemption visas first, adding any unselected people from that group to the 65,000 regular cap visa applicants. The proposed regulation would overturn this requirement, pulling the 20,000 exempt visas only after USCIS selects the regular pool, but that change would conflict with current regulations.

Visas are harder to come by

The USCIS has implemented new policies and restrictions which make it more difficult to obtain the approval of H-1B petitions. Many companies were hoping the administration would raise the H-1B cap, but it seems to be going in the opposite direction.

The administration also proposes to terminate eligibility for work authorization of H-1B visa holders’ spouses and further restrict the occupations eligible for the programs. In addition, they plan to limit or do away with the Optional Training Period for international graduates from American universities to continue working in their field after graduation.

These restrictions are turning away foreign students from the U.S. at a time when employers face a shortage of skilled workers in the STEM fields. Industry experts are hoping that the administration, as well as Congress, will recognize the need to encourage smart, capable people from around the world to come to the U.S. for education and employment.