According to the DOL, a software developer’s job, which accounts for 40% of the H-1B jobs in the tech field, is no longer a specialty occupation. Under this new rule, the 40% loss of the workforce becomes a reality, which would devastate the tech industry.
On Oct. 8, 2020, the Trump administration announced two new rules that stifle U.S. companies' ability to hire qualified H-1B visa holders. The Interim Final Rules were issued without any notice period or right to comment and lawsuits have already been filed.
Trump Sends Tech Jobs Overseas Under New H-1B Rule - October 8, 2020
The irony of the Interim Final Rule is that Trump, who promised to bring jobs back to America, has ensured many will leave with these sweeping rules.
Revised Definition of Specialty Occupation & Limited H-1B Validity
The DHS and DOL limited the validity of an H-1B visa to one year (instead of three) for any tech worker placed at a third-party worksite. These changes are set to take effect in 60 days.
The U.S. Department of Homeland Security (DHS) and Department of Labor have also changed the definition of a specialty occupation and what qualifies as an employee-employer relationship.
In the amended definition of specialty occupation, DHS first replaced the word ‘position’ with ‘occupation’ to ensure employees strictly conform to their occupational codes.
Second, DHS has narrowed the definition of specialty occupation by removing the adjectives’ normally,’ ‘most,’ and ‘typically’ that were used to qualify a job as a specialty occupation. Thus, the narrowed definition includes only those jobs that require 100% of people to have a bachelor’s degree.
In the past, courts ruled that for a job to qualify as a specialty occupation, 51% of those in the position must have a bachelor’s degree.
According to the DOL, a software developer’s job, which accounts for 40% of the H-1B jobs in the tech field, is no longer a specialty occupation. Under this new rule, the 40% loss of the workforce becomes a reality, which would devastate the tech industry.
The eliminating language of the new rule impacts a large portion of other H-1B jobs as well. For instance, a general engineering degree requirement for a position as a computer engineer would no longer satisfy the specific occupation requirement. The revised definition would require a specific type of engineer to have a specific degree and show how the job is related.
What’s more, is the numerous jobs aren’t even included in the OOH, like software architect (one of the most sophisticated roles) or quality assurance tester (a typical role).
The issue with the singular degree requirement is that often the coursework of a related degree provides the specialized knowledge needed to perform job duties. For instance, to fill a computer programmer position, an applicant does not necessarily require a computer science degree to carry out tasks. Instead, a person with a mathematics or information technology degree can adequately fulfill such job responsibilities.
Redefining specialty occupation to include specialization beyond a degree will arbitrarily complicate the process and drain employer resources.
Furthermore, the revised definition focuses too narrowly on the degree title without regard to the individual’s specialized body of knowledge, completely ignoring what U.S. employers seek in a competitive labor market.
Increased Prevailing Wage
The Department of Labor (DOL) raised the prevailing wage for both entry-level and higher-skilled H-1B applicants.
The DOL rule Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States is a direct punch to U.S. companies’ bottom line.
The rule implements the following prevailing wages.
• OES Wage Level 1 – 45th Percentile
• OES Wage Level 2 – 62nd Percentile
• OES Wage Level 3 – 78th Percentile
• OES Wage Level 4 – 95th Percentile
There is a marked increase in the prevailing entry-level wage as it jumped from a level 1 to almost level 3 in the previous wage determination.
While this administration has refused to increase the minimum wage for Americans it has made a massive increase to the wages for foreign nationals on H-1B visas.
Software Developer in Dallas Texas must now be paid:
Level 1 Wage: $50.59 hour - $105,227 year
Level 2 Wage: $61.16 hour - $127,213 year
Level 3 Wage: $71.73 hour - $149,198 year
Level 4 Wage: $82.30 hour - $171,184 year
Compare this with the prevailing wage for Oct. 7, 2020, for the same job in the same location:
Level 1 Wage: $36.90 hour - $76,752 year
Level 2 Wage: $44.98 hour - $93,558 year
Level 3 Wage: $53.05 hour - $110,344 year
Level 4 Wage: $61.13 hour - $127,150 year
The purpose of increasing the prevailing wage is not to assist Americans in getting a job, but to frustrate H-1B visa holders and the American companies that need to hire them. This is evident as the prevailing wage is spiked so high that it makes it impossible, in many professions in most places, to obtain an entry-level job at these wages.
Conclusion
The consequences of creating more restrictive rules on American companies trying to dig out of the pandemic creates a chilling effect for the American tech economy.
- International students will be disinclined to come and study in STEM fields.
- Billions of dollars will be lost from international students, followed by a deficit for higher education institutions.
- U.S. employers will opt to open offices overseas, causing Americans in managerial positions to lose their jobs as there is no one to oversee.
- Instead of fulfilling the promise to bring back manufacturing jobs, the Trump administration will have removed tech sector jobs that have been driving the American economy for the past decade.
- American companies will be forced to move more jobs offshore.
Since the Revision of Specialty Occupation doesn’t go into effect for 60 days, the question remains whether this is just a political stunt to get American voters to vote for Trump ahead of the 2020 presidential elections.
More importantly, will it hold up in court? This process has been an expedited version of the typical process that requires a notice and comment period similar to the now enjoined Trump proclamation that denied entry to H-1B visa holders and other types of valid work visas.
Have you received an RFE or had your H-1B visa petition denied? Find out what options you have with OnlineVisas' FREE confidential case analysis.
1 Comments
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