A hallmark of the current administration is to constantly find ways to slow, deter, or stop immigration to the United States. The most effective ways the administration has impacted the immigration system is not through consensus, congressional enactments, or an actual wall. Instead, Trump has built an invisible wall through executive order, minor but critical regulatory changes, underfunding agencies, and creating confusion. The Department of Homeland Security and the Department of Labor have each added another brick to the wall.

The Department of Homeland Security has introduced more stringent requirements for the H-1B classification. The H-1B is one of the most common visa types for foreign workers in the U.S. Changes to the requirements affect thousands of employees and businesses across the U.S. As we often see in such proposed changes, this new policy will likely face a lawsuit.  Perhaps the changes will also be halted by the courts temporarily or permanently. Specifically, the new Dept. of Homeland Security regulations which take effect December 7, 2020 seek to do the following:

  • Narrow the definition of “specialty occupation.” This will limit the type of positions that qualify for H-1B status.
  • Demand a direct relationship between the required educational degree and the duties of the position.
  • Modify the third-party worksite requirements, limiting the amount of time an employee can work at such a location.

Employers may consider applying for H-1B extensions for eligible employees before the new rule goes in effect to maximize chances of success.  Such cases need to be started as soon as possible.

The Dept. of Labor also announced a new regulation that went into effect immediately.  The regulation now requires an artificially inflated “prevailing wage.” The prevailing age impacts applications for H-1B status and labor certifications (for the green card process).  Because this rule is likely unlawful, litigation has already begun and we expect it to move quickly.

Even as more bricks are added to the invisible wall, one thing is for sure: We will keep fighting and winning for deserving immigrants!