Biden Immigration Rule Copies Some Trump Plans To Restrict H-1B Visas

A Biden administration proposed H-1B visa rule copies verbatim significant restrictive language from a 2020 Trump rule aimed at blocking foreign-born scientists and engineers. Companies criticized the negative impact of the language in the Trump rule. The evidence indicates the new narrower definition of what qualifies as an H-1B specialty occupation would prevent an indeterminate number of current and future foreign-born professionals from working in the United States. (See here for an analysis of other parts of the proposed rule, including changes to the H-1B visa lottery.)

U.S. Citizenship and Immigration Services published a notice of proposed rulemaking on October 23, 2023. The rule is subject to a 60-day comment period. While there are also favorable provisions for employers and students, the new H-1B restrictions in the proposed rule would appear to violate the administration’s National Security guidance and strategy on “attracting and retaining the world’s best talent.”

Copying The 2020 Trump H-1B Rule’s Language

The Biden administration’s proposed rule takes crucial language on degrees from a restrictive interim final rule the Trump administration published in 2020. Courts later blocked the Trump rule. Attorneys and companies warned at the time the rule’s language would stop many talented foreign-born professionals from working in America. The Trump administration failed to publish a new version of the rule before Donald Trump left office, but now USCIS has revived key parts.

The Trump and Biden H-1B rules both use the phrase “directly related specific specialty” to narrow the positions considered specialty occupations. The Trump and Biden rules state to qualify as a specialty occupation, the position must require “A U.S. baccalaureate or higher degree in a directly related specific specialty or its equivalent” for entering the occupation.

However, the Immigration and Nationality Act (INA) does not say a degree must be in a “directly related” specific specialty. As for the phrase “specific specialty,” the law only states, “The term ‘specialty occupation’ means an occupation that requires . . . attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

More than half (51%) of U.S.-born individuals and 18% of temporary visa holders working in computer occupations have a degree other than computer science or electrical engineering, according to a National Foundation for American Policy analysis of the 2021 National Survey of College Graduates. Nearly half (48%) of chemists and 15% of temporary visa holders have a degree other than chemistry.

“It is a common mistake to think there is an exact correspondence between field of degree and occupation in the technical labor force,” said labor economist and NFAP Senior Fellow Mark Regets. “In reality, employers often hire workers who have gained the necessary skills through other coursework and experience. It is unclear how closely USCIS intends to require an exact match between occupational and degree titles, but even assuming they use very broad categories, many current workers with temporary work visas might not meet the new criteria. This non-problem is not due to the temporary work visa system since the U.S.-born have a much higher percentage of seeming mismatches.”

In 2020, in InspectionXpert Corp. v. Cuccinelli, a judge rejected the USCIS assertion under the Trump administration that it had the right to deny an H-1B petition because the position did not require a degree in a specific subspecialty and could be filled by someone with a degree in more than one discipline, such as different types of engineering degrees. The Biden administration has resurrected the Trump team’s restrictive interpretations of immigration law.

“What they’re doing is trying to fix all the court cases they have lost,” said Jonathan Wasden of Wasden Law.

Another Section Copies Trump H-1B Rule Verbatim

Current USCIS regulatory language states: “Specialty occupation means an occupation that requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and that requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”

The Trump administration’s interim final rule and Biden proposed rule both add underneath (with only a slight grammatical difference in the last sentence) the following restrictive language: “The required specialized studies must be directly related to the position. A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.”

What The New Restrictions On Specialty Occupations Mean For Employers And Professionals

“The proposed regulation seeking to amend the definition of ‘specialty occupation’ is of great concern as it would incentivize USCIS examiners to issue Requests for Evidence, which in turn would be burdensome on employers,” said attorney Cyrus Mehta. “There is no requirement in the INA provision that the required specialized studies must be directly related to the position. A lawyer would qualify as a specialty occupation, as only a degree in law would allow entry into the occupation. But INA section 214(i)(1) reads more broadly. It also ought to encompass a marketing analyst, even though this occupation may require a bachelor’s degree in diverse fields such as marketing, business or psychology.”

Mehta argues, citing legal precedents, if an occupation requires a generalized degree but specialized experience or training, it should still qualify as a specialty occupation.

“The proposed rule seems to latch onto old, outdated notions of a business degree being too generalized to qualify for H-1B classification,” said Mehta. “The preamble to the rule also states that ‘a petition with a requirement of any engineering degree in any field of engineering for a position of software developer would generally not satisfy the statutory requirement’ as the petitioner may not be able to demonstrate how the different fields of engineering would qualify the H-1B worker to perform the duties of a software developer.”

In 2020, in a declaration in the U.S. Chamber of Commerce lawsuit against the Trump H-1B rule, Zane Brown, vice president and associate general counsel, labor and employment at Amazon, wrote, “It would also eliminate the ability of hiring managers to consider employees who bring years of hands-on experience, which is particularly valuable given the pace of technological change. The current regulations permit the combination of education and experience—even if the degree is not in a ‘directly’ related field. This strict degree requirement is arbitrary in nature to only focus on degree relevance and neglect the importance of industry experience.

“For example, Amazon employs a data scientist who possesses a degree in psychology with substantial coursework in statistics and economics. As another example, Amazon employs a software engineer who possesses a degree in chemical engineering. As a third example, Amazon employs a Senior Product and Customer Insights Manager who possesses a degree in Public Administration, Applied Economics, and Finance. Under the DHS Rule, it is not clear that any of the valued employees would qualify for an H-1B visa because the individual’s degree is not sufficiently specialized, even though these employees are well qualified with relevant coursework and possess the needed skills to fill these positions.

“Many of Amazon’s most tenured employees with degrees that would not be considered ‘directly related’ under the DHS Rule are going to be at substantial risk of having their renewal cases denied.”

Joseph Elias, director of faculty/staff visa services at the University of Southern California (USC), declared, “This narrowing of eligibility will severely impact research positions in burgeoning cross-disciplinary fields. For example, in the field of bioinformatics, a highly qualified individual might have a degree in computer science/engineering or a degree in biology/health science. . . . Requiring a ‘directly related specific specialty’ degree threatens to eliminate the ability to employ individuals on H-1B or E-3 visas in these critical fields at the forefront of scientific research.”

The proposed rule contradicts current USCIS practice. “For something like a quantitative analysis role, USCIS has been willing to look at coursework and similar factors in evaluating whether the degree supports a specialty occupation,” said Kevin Miner of Fragomen. “This language certainly could have the effect of changing that approach, and we could see denials of cases that are traditionally approved. Many finance professionals, for instance, have a degree in business without a further stated specialization. They may have taken a lot of finance coursework, but their degree doesn’t specialize in the field. Those are the kinds of cases that could suddenly begin getting denied if there is too literal an interpretation of this rule change.”

Customers and Staffing Firms Under the Proposed Rule

“In situations where an H-1B petition involves placement of the worker at a 3rd party worksite, USCIS is proposing to have the requirements for the role of the 3rd party company—rather than those of the petitioner—control whether the role is a specialty occupation,” according to Miner. “USCIS does attempt to clarify that there is a difference between a placement at a 3rd party location and an H-1B worker being ‘staffed’ at a 3rd party company. However, this language could easily be misinterpreted by adjudicators such that every time the H-1B professional is going to be at a 3rd party company, the adjudicator would want to look at what is required for similar roles at that company. This ignores that the H-1B professional may be performing a very different role on a distinct project from what the 3rd party company normally performs, but we could nevertheless see Requests for Evidence and adjudications based on the 3rd party company rather than the H-1B employer.”

Cyrus Mehta shares similar concerns. “Defensor v. Meissner, a case referenced in the proposed rule, involved a staffing agency for nurses that contracted the nurses to hospitals. Would USCIS understand the distinction between the nurse in Defensor and a software engineer providing services to the client rather than being staffed at the client? I have a feeling that this provision will still trigger Requests for Evidence.”

IT services companies may be forced to prove they are providing services and not “staffing,” given the significant distinction in requirements proposed for the two types of firms.

Deference And Clarifying What Normally Means

The proposed rule would codify existing policy announced under USCIS Director Ur Jaddou that adjudicators would defer to prior determinations when no material error, information or circumstance change exists “adversely impacting the petitioner’s, applicant’s, or beneficiary’s eligibility.” Jaddou reversed a Trump policy that told adjudicators to no longer defer to prior adjudications when evaluating extension of status applications. That policy had resulted in more work and forced experienced tech employees to leave the United States when their extensions were denied under a different, more restrictive standard.

Attorneys point out a limitation on the deference policy: Deference is irrelevant unless a foreign-born professional first qualifies under the new, more restrictive standards imposed in the proposed rule on specialty occupation.

The proposed rule also would adopt more acceptable definitions of common words that could prevent officials from twisting their meaning. “The proposed regulation . . . clarifies that ‘normally does not mean always.’”

During the Trump years, USCIS argued an occupation was not a specialty occupation if it did not “always” require a bachelor’s degree. To reach this result, Trump officials claimed the definition of “normally” was “always” and used this to exclude computer programmers (and others) because the Occupational Outlook Handbook said computer programmers “normally” had a bachelor’s degree as a minimum requirement for entry. USCIS rescinded the 2017 policy memorandum that twisted the definition of “normally” after a U.S. Court of Appeals for the Ninth Circuit decision (Innova Solutions v. Baran).

Maintenance Of Status And Bona Fide Job Offers

Jonathan Wasden, who filed successful lawsuits that forced changes in USCIS policies during the Trump administration, criticizes the parts of the proposed rule on “Maintenance Of Status” and “Bona Fide Job Offers.”

“USCIS is attempting to revive two old policies determined to be unlawful by a few federal courts,” said Wasden. “They have rebranded the contracts and itineraries memo and nonspeculative work policy and now refer to it as the ‘bona fide job offer’ test. These policies were invalidated by courts because they contradicted the law’s allowance of ‘nonproductive status (for lack of work).’ If this makes it into the final rule, I don’t see how it survives a court challenge again.”

“The maintenance of status rule is troubling because it appears USCIS is seeking to punish employees whose employers have not paid full wages,” said Wasden. “The statute on this is pretty clear: receipt of wages has nothing to do with maintenance of status. If an employee isn’t paid, they can file a complaint with the Dept of Labor, which has immense authority to compel wage payment. USCIS’s proposed rule undermines the statute on this issue.”

The proposed rule is subject to a 60-day comment period.

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