Administration files rules to raise H-1B wage requirements, limit eligibility

Earlier this week, the Departments of Homeland Security (DHS) and Labor (DOL) filed interim final rules related to the H-1B visa application process.

The DHS rule is not yet available, but a press release indicates its purpose is to limit the definition of “specialty occupation” and to close “loopholes.” The rule will take effect 60 days after it is published.

The primary effect of the DOL rule, effective as soon as it appears in the Federal Register, will be to bolster the calculations employers use to determine prevailing wages in their applications for the visas. The net effect of these changes will be an increased likelihood that companies will have to pay visa-based workers more than their American counterparts — thereby incentivizing companies to try harder to hire American workers.

Acting deputy secretary of DHS Kenneth Cuccinelli says the net impact of these rules will be to cut H-1B applications by one-third. This would still leave the department significantly over-subscribed for the 85,000 annual visas.

Processing of H-1B visas, along with several other visa categories, had been suspended until at least the end of the year under an executive order issued this June. The order was blocked last week by a U.S. District Court ruling. The DOL rule uses the potential restart of the program as part of their rationale for waiving a public comment period before implementation.

Previously, the administration has implemented new rules to prioritize holders of advanced degrees for H-1B visas and has increased the portion of applications that are challenged or denied.