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H-1B Visa Rule: Petitions By Value Not Values

Author: US Visa Attorney Alena Shautsova

Alena Shautsova, NYC Immigration lawyer helps clients to obtain US visas, assists with petitioning process, green card process and more.

The U.S. Department for Homeland Security has published a rule which will see a drastic change to the way H-1B petitions are dealt with.

Currently, a ‘lottery’ system governs who gets the job and who doesn’t. Where prospective employees find themselves in a pool beyond the size of the State Department’s liking, they are plucked from the pack at random. A lottery is a risky business, of course, but at least it is fair, as it disregards the size of the employer or how deep its pockets are. The State Department will be moving the goalposts again, effective from March 2021. Applying for a H-1B Visa won’t just be a ‘lottery’ - a game of long or short odds – but a stacked deck for the lowest-paid.

A maximum of 85,000 people are granted the right to apply for a H-1B visa to travel to and work in the US. Through the selection process, a degree of priority is given to potential employees who hold masters degrees. That said, the ‘lottery’ has remained a relatively level playing field for H-1B applicants.

Under the lottery system, 20,000 of the entire quota fall under an Advanced Degree Exemption and, therefore, have a slightly greater degree of access to the US market. If there are more than the 20,000 cap under the Advanced Degree Exemption, their quota becomes subject to a lottery and any remainder is allowed to form part of the regular pool vying for the last 65,000 H-1Bs. If this pool is full, it falls subject to fate. Where the current system does favour the brightest – allowing petitions from the most well-educated to two rolls of the dice rather than just one – the randomized nature of the system does not allow for discrimination by any other measure. In principle, a lottery holds no fear nor favour.

The Final Rule published in the Federal Register will see this change. The H-1B selection process will discriminate based on how much one earns. The random process will be replaced by another which takes account of ‘the highest Occupational Employment Statistics (OED) prevailing wage level that the proferred wage equals or exceeds for the… areas of intended employment.’

The current HB-1 rules have been subject to criticism, commentators suggesting that they incentivise the hiring of foreign workers in place of their American counterparts, which in turn have stifled wages across sectors of the US economy.

Many employers have been taking advantage of a loophole within the current framework which exempts companies who pay more than $60,000 annually for their employees from having to pay H-1B employees a wage equivalent to a usual wage – a wage one might expect to receive for performing a similar role in the US. This has made hiring well-educated men and women from across the world at lower rates of pay perfectly legal and has been said to disincentivise the hiring and training of Americans across STEM-rich sectors. Where there may be truth to this claim – A Migration Policy Institute did find that companies with more H-1B employees were more likely to pay their employees less – it is doubtful that the change due to come into force in March will be any more economically equitable.

The new sifting mechanism for petitions is going pit H-1B petitions against each other based on rates of pay. This confuses ideas of economic value with societal value. I am no expert economist but I am expert enough to understand that economics cannot be understood outside the remit of moral philosophy or human understanding. What drives our economic decisions – what we buy, choose to spend our time doing and why – en masse, or on an individual scale, cannot be measured discretely and without consideration of the fact that human beings are not measurable parts of one great machine.

Many Americans of great value will no doubt live in this country performing great services to their communities – caring, teaching, building. The size of the wage they receive is not a measure of their value. These Americans are people. And just like these Americans, those who intend to come and work on a H-1B visa will be of intrinsic value. Not because they will be capable of spending a certain amount of money at the store, but because they are capable of human endeavour.

President Trump seems to have forgotten that his Grandfather Freidrich, a German Barber, had himself been granted the opportunity to emigrate to the United States. After being granted this opportunity, Freidrich went on to make a small fortune. Donald J Trump became President.

Under the new rules for the H-1B Visa, once that 85,000 quota is full, the lowest paid will be pushed to the back of the line. A person’s ‘value’ has been reduced to their monetary worth. Value is more than just a function of one’s ability to earn and spend money. Changes to the H-1B may help prevent some bad employers from paying their staff poorly, but it sends a stark message about economic values to the rest of the world.

If you need help with US visas or green cards, adjustment of status, change of status, give us a call at 917-885-2261 to reserve a confidential consutaltion (fees apply).

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11 January 2021
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