h1b selection process: Foreign students will be the biggest losers in the new H-1B selection process – The Economic Times

Clipped from: https://economictimes.indiatimes.com/nri/work/foreign-students-will-be-the-biggest-losers-in-the-new-h-1b-selection-process/articleshow/80230756.cmsSynopsis

Even students with some experience and master’s degrees, who could qualify for Level 2 positions are not likely to stand a chance. The changes seem to be drafted to have a maximum effect on level 2 positions as more than 50% of the H-1B petitions are filed for this level of workers.

The US Department of Homeland Security (DHS) announced a final rule (the Final Rule) to amend regulations governing the process by which US Citizenship and Immigration Services selects H-1B registrations for filing of H-1B cap-subject petitions (or petitions, if the registration process is suspended). This rule changes the H-1B selection process for the 85,000, annually allotted H-1B visas from a random selection to one based on wages.

Effect on Foreign Students in the US
This new selection process will have a devastating effect on foreign students as most qualifying foreign students are sponsored for Level 1, H-1B positions. The USCIS claims that the changes promulgated in the Final Rule will not affect foreign students because they will have time during their OPT status to gain experience taking them to a higher wage level. However, only STEM students may qualify for three years of OPT. All other foreign students may qualify for only one year of OPT.

Even students with some experience and master’s degrees, who could qualify for Level 2 positions are not likely to stand a chance. The changes seem to be drafted to have a maximum effect on level 2 positions as more than 50% of the H-1B petitions are filed for this level of workers.

Universities had expressed their concern during the comments period as these changes will have a devastating effect on the attractiveness of a US education. The uncertainty of being able to work in the US for at least some time after graduation will be a huge deterrent. This is especially so since the UK has recently liberalized work authorization for UK graduates and Canada has always been very welcoming of foreign students, offering them a fairly simple path to work with a possibility of progressing to permanent residency and finally citizenship.

The Selection Process and USCIS’ Anticipated Effect
Under this rule, the USCIS will first select registrations (or petitions, if the registration process is suspended) generally based on the highest Occupational Employment Statistics prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment. Thus, the Final Rule prioritizes the selection of “most highly skilled foreign workers” based on their level of experience and job duties and salaries with preference being given to Level 4 positions, then going down through the ranks to Level 1 positions.

The government hopes that modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions among other things. This change only affects new petitions filed under the annual H-1B cap and will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two as established for the H-1B FY 2021 selection.

However, if after a petition has been approved, the USCIS may deny or revoke an approval of a subsequent new or amended petition filed by the petitioner or related entity on behalf of the same beneficiary, if the USCIS finds the new filing is an attempt to unfairly decrease wages to a lower level.

The Final Rule’s Future
This final rule is effective March 9, 2021. If registration for the FY2021 cap season is set to open on March 1st like the last year the Final Rule cannot be implemented. However, the USCIS could, before inauguration day, announce a delay in the registration process or make other changes to the selection of cap petitions. Another possibility is that this regulation is likely to be covered by the Biden Administration if it delays by an additional 60 days, all regulations that are not final on or by inauguration day.

If the Biden Administration decides to rescind the Final Rule it would have to write a new regulation unless there is a court order or action under the Congressional Review Act (CRA).

Businesses should not become complacent should the Final Rule be stymied as the Biden team has also promised it will work with Congress to first reform temporary visas to establish “a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages.” Changes under the new administration could be long drawn but seem inevitable.

Potential Litigation

If the Final Rule were to be challenged, there is a good chance the court could strike down the rule or impose other restrictive measures on its implementation because:

  • DHS did not provide the required 60 days for public comments and indicated that 30-day notice was adequate because this is a narrow rule. The court might find that it cannot be a narrow rule as the document runs into 184 pages.
  • Further the DHS also did not allow the Office of Management and Budget to review the Final Rule before it was published to become effective in March 2021, which is contrary to the required procedure unless there are special circumstances. In other DOL and DHS actions, several courts have not found the circumstances the Final Rule relies on, to qualify for the truncated comments period.
  • A court could find DHS Secretary, Chad Wolf’s illegal appointment is a violation of The Vacancies Act.

The writer is managing partner at Law Quest, an immigration and employment law firm
(Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not reflect the views of www.economictimes.com.)

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