Post by Daniel Rose. Colgate Class of 2023.
The H-1B visa program is a program that helps maintain American competitiveness, particularly in fields such as science, by providing a legal way for top scientists to come to the United States and work at the top tier research institutions. The H-1B program was established by the Immigration Act of 1965, also called the Hart-Celler Immigration Act of 1965 (Kammer, 2015). The United States relies on foreign workers who obtain H1B visas to help maintain American competitiveness, primarily in the science and technology sector (Lowe, 2020).
The Trump Administration has been seeking to limit immigration, especially amid the COVID-19 pandemic. COVID-19 temporarily brought travel, and immigration, to a full stop – suspending green cards entirely for a period (Lee, 2020) early on in the pandemic. More recently, many universities including Harvard and MIT sued ICE for instituting a rule saying that international students would not be able to study at US colleges and universities if they were studying in an entirely-online format (MIT News Office, 2020).
Recent changes to the H-1B program proposed by the Trump Administration, entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program” (Federal Register, 2020) are likely to draw ire and even legal challenges due to the fact that they may reduce H-1B immigration by up to one-third. This could have disastrous effects for American R&D and is not likely to be supported by the research institutions it serves.
With the New Proposed Rule, Trump Administration is in Direct Conflict with American R&D Institutions
Legal immigration is an essential aspect of U.S. culture. The U.S. is called the “melting pot” because of the contributions of immigrants. Legal immigration is essential to advance American science/technology research & development (R&D). Examples of legal immigrants
who have transformed American R&D include Albert Einstein and Werner von Braun. American universities are strong proponents of immigration and R&D visas, such as H-1B, since they rely on these to draw new talent to advance their research priorities. As a result, universities have long recognized and openly celebrated the importance of immigration to their communities. In a letter to MIT, university president Rafael Reif recently called immigration “a kind of oxygen” (MIT News Office, 2019). MIT and other universities have tussled with Trump on immigration rules imposed by the White House, and it is likely that this new rule, which has been proposed and is now subject to a 60-day comment period, will be no exception.
What is the New Proposed H-1B Rule?
The new H-1B rule, called “Strengthening the H-1B Nonimmigrant Visa Classification Program,” does not affect current H-1B visa holders but people seeking H-1B status, amendments, transfers, and so on. Published here, there is a 60-day comment period and review before the U.S. government (including potential rebuttal, court cases, etc.) before it is instituted.
There are Four Key Changes:
- Duration – The duration of the H-1B visa has been changed from three years to one, and this change is only for third-party companies. It will not impact people who are working directly for a company (e.g., someone who works at Google) but rather a third-party employee (e.g., someone who is hired from a third party company to work for Google).
- Salary Increase – Employers will be required to pay H-1B workers a higher salary.
- Revising Specialty Occupation – The new rule asks H-1B applicants to have a college degree in their field of study, not a related field, as is the existing rule.
- Employer and Employee Relationship – The new rule gives a changed definition for an employer-employee relationship. The Federal Register outlines the changes as follows:
“Currently, the term “United States employer” is defined at 8 CFR 214.2(h)(4)(ii) as “a person,
firm, corporation, contractor, or other association, or organization in the United States” which, among other things, “[e]ngages a person to work within the United States..”
“Through this rule, DHS is changing this definition by: (1) Striking the word “contractor” from the general definition of “United States employer”; (2) inserting the word “company” in that general definition;
(3) expanding upon the existing requirement to engage the beneficiary to work within the United States; and (4) expanding upon the employer-employee relationship and the factors used to determine if a valid
“employer-employee relationship” between the petitioner and the beneficiary exists or will exist.”
Immediate reactions to this rule, which ultimately serves to revamp and limit the H-1B visa program, have cast the rule as overly stringent and difficult to establish legally. The rule has been described by commentators on YouTube as “bypassing normal regulatory processes” which could provoke a swift challenge in courts. The stringent new requirements may reduce the number of H-1B visas granted by 33%.
The Existing H-1B Visa Program Strategically Advances US R&D Policy Priorities While Improving the Lives of Everyday Americans
Trump’s agenda to protect American workers have conflicted with existing immigration policies, and these conflicts, unfortunately, have important impacts on American R&D, which impacts the United States’ ability to remain a leader in science and technology. R&D supremacy is important for the United States to have the latest technologies to keep Americans safe (e.g., military technologies, new cancer treatments) and make sure that we are a leader in technology (e.g., Silicon Valley tech companies, having the best smartphones, etc.). The United States’ need to advance its R&D priorities therefore is in direct conflict with Trump’s proposed immigration changes, most recently to the H-1B visa program. It is for this reason that analysts have speculated that this rule, which has been recommended and will undergo a 60-day comment/revision period, will be met with legal challenges.
However, the United States also leverages legal immigration to advance its priorities, particularly in terms of science and technology research and development (R&D). Merit-based immigration programs such as the H-1B visa program have been established to create a strong pipeline of R&D workers that can strengthen the American workforce by bringing unique expertise that may not currently exist in the United States.
- Federal Register. (2020). “Strengthening the H-1B Nonimmigrant Visa Classification Program.” https://www.federalregister.gov/documents/2020/10/08/2020-22347/strengthening-the-h- 1b-nonimmigrant-visa-classification-program
- Lee, A. (2020). “What the H1B Executive Order Means to Tech — and Fashion.” Yahoo! Finance.
- Lowe, D. (2020) “A Brief Note on Immigration and American Science” Science Translational Medicine.
- MIT News Office. (2019). Letter to the MIT community: Immigration is a kind of oxygen. https://news.mit.edu/2019/letter-community-immigration-is-oxygen-0625
- MIT News Office. (2020). ICE rescinds rule on international students and online learning. https://news.mit.edu/2020/government-rescinds-international-student-0714
- Kammer, J. (2015) “The Hart-Celler Immigration Act of 1965.” Center for Immigration Studies. https://cis.org/Report/HartCeller-Immigration-Act-1965
- “Pledge to America’s Workers.” (2017). WhiteHouse.Gov. https://www.whitehouse.gov/pledge-to-americas-workers/
- “Presidential Executive Order on Buy American and Hire American,” (2017). WhiteHouse.Gov, https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-ameri can-hire-american/