H-1B regulatory reforms risk legal challenges, while industry and critics debate the necessity. Proposed rules favor technical skills, but face pushback from various groups.
The U.S. Senate and House negotiations over stopgap appropriations bills include immigration talks, namely around border security. There's a possibility that these negotiations could lead to changes in the H-1B visa program, but it's a long shot to expect Congress to act.
In the absence of congressional action, the only changes the business community can expect to the H-1B program are through regulatory action. But White House regulatory changes are a risky path given that reforms are often challenged in federal court by businesses, which usually claim that the rule changes are not allowed under immigration law. A good example is former President Donald Trump's attempt in 2020 to rank H-1B visa distributions based on salary. His proposal lost in court.
Still, the White House and Congress are facing pressure from the semiconductor industry to increase the labor supplied by foreign workers.
The CHIPS Act, approved in 2022, includes $52.7 billion in funding for semiconductor manufacturing in the U.S. and is expected to create demand for technical skills. CHIPS funding includes an earmark for training programs, but the semiconductor industry said it still needs foreign workers.
To accommodate the H-1B visa demand, the White House is trying to make limited regulatory adjustments favoring employers that either are sponsoring or want to sponsor workers with specific technical skills, such as engineering. But its proposals to change the program are getting pushback from some industry groups and critics of the H-1B visa program.
Backdoor H-1B expansion
Industry groups say the White House's proposed H-1B visa rule changes are overly restrictive and could make hiring difficult. Meanwhile, critics of the H-1B program charge that the administration's plan includes a backdoor for the private sector to bring in more foreign workers.
The present law exempts some nonprofit research organizations from the 85,000 H-1B annual cap. In its comments on the proposed rule, the Economic Policy Institute, a think tank, said the White House is loosening the definition of nonprofit research entities "for the express purpose of expanding eligibility" for H-1B visa groups. It argued that the rule change could enable, for instance, a nonprofit hospital to use H-1B workers to move IT jobs overseas.
In the case of H-1B and employment-based visas, this would mean shifting visas from other fields toward the chip fields, but not increasing the cap.
Russell HarrisonManaging director, IEEE-USA
Russell Harrison, managing director of the professional organization IEEE-USA, said modifying existing rules could make it easier for chip companies to use H-1B and employment-based green card visas, as well as the O-1 nonimmigrant visa designed for those who are nationally or internationally recognized for their abilities in the sciences, arts, education and other areas.
"In the case of H-1B and employment-based visas, this would mean shifting visas from other fields toward the chip fields, but not increasing the cap," Harrison said.
In a proposed regulation entitled "Modernizing H-1B Requirements," one change would revise the definition of specialty occupations in a way that appears to favor visa seekers with engineering and technical degrees. If this provision is implemented, a visa candidate will need specialized knowledge related to the job. This change could make it harder for people with a general degree, such as a degree in business, to get a visa.
Pushback from both directions
But the change in specialty occupations is facing pushback from tech companies and industry groups as being too inflexible.
"In emerging technology areas, the skills and duties required for fast-evolving jobs can develop rapidly," wrote Ampere Computing, a semiconductor company in Santa Clara, Calif., in comments submitted to the government late last month over the rule change. "Innovation creates new occupations and academic areas that do not exist today or are just emerging as recognized bodies of knowledge."
Similarly, the Society for Human Resource Management, an HR professional organization, argued that business administration degrees, for instance, should not be excluded as they "are generally characterized by depth and complexity."
In a separate rule change, the Labor Department is seeking public comment through Feb. 20 on a change to Schedule A of the permanent labor certification process. The provision allows certain occupations to bypass the traditional labor certification process when seeking permanent residency. Steps for employers include job ads to ensure there isn't a qualified U.S. candidate. If adopted, the change could make it easier for engineers and other STEM professionals to get a green card.
Tech industry lobbyists, speaking on background only, can't imagine this Congress taking action on the H-1B visa as lawmakers try to reach an agreement on border security and funding for Ukraine.
Another complication over the H-1B visa cap is the continuing debate over whether more foreign workers are needed beyond the existing 85,000 cap.
The labor federation AFL-CIO, which says it represents more than 12.5 million unionized workers, said the immigration system "has helped employers drive down wages and working conditions for our entire workforce" in its comments on the H-1B changes.
Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.
