The Biden administration on Tuesday announced that it has removed a Trump-era rule that had sought to narrow the definition of “speciality” for qualifying for H-1B non-immigration short-term work visas in the country – doing away with one more of former president Donald Trump’s restrictive changes to the visa programme.
The Trump administration had issued an order last October seeking to “narrow” the definition of speciality occupation to ensure US companies could use the visa programme to make “real offers” to “real employees” and not to hire foreigners as “low-cost replacement” for qualified Americans.
A bachelor’s degree wasn’t sufficient under that rule. Instead, a bachelor’s degree in a specific field related to the job was required.
The rule couldn’t be implemented, though, as it was a vacated by a court. The department of homeland security has now removed it altogether from the Code of Federal Rules.
“This is one of Trump’s three big midnight regulations to remake (some would say destroy) the H-1B system,” Doug Rand, an immigration official from the Obama administration, had tweeted back in October. He added, separately, “The Biden administration continues to take a thoughtful approach to Trump-era immigration regulations, an unprecedented number of which were jammed through at the last moment. The lawsuits continue to pile up, and we may see other Trump-era H-1B rules evaporate as well.”
Rand is now the co-founder of Boundless Immigration, a tech company that helps immigrants get green cards and citizenship.
Speciality occupation will now go back to being what it was before October 2020. It technically means “an occupation which requires theoretical and practical application of a body of highly specialised knowledge in fields of human endeavour… and which 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 US grants 85,000 H-1B visas every year under a congressionally mandated cap to American companies to hire foreign workers to make up for the shortage of qualified workers locally.
More than 70% of the visas go to Indian professionals hired from India or from US schools and colleges by American companies such as Facebook, Google and Microsoft, as well as by US subsidiaries of Indian companies such as TCS, Wipro and Infosys.
Trump had issued a slew of orders starting within days of taking office in January 2017 to end what he and other immigration hawks in his administration had called fraud and abuse of the H-1B visa programme.
Of the many measures initiated by his administration, only two survive: ending the use of electronic lottery to select successful petitions for H-1B visas and prioritise those getting higher wages; and fixing wage levels for H-1B hires in tune with prevailing wages to prevent the programme from bringing low-wage replacement for American workers.
“Both rules are problematic and there is no final decision on their fate. It is also possible the Biden administration could resurrect in some manner the part of the vacated Trump H-1B regulation that places new restrictions on work at third-party sites. But that would certainly invite legal challenges, and the two delayed rules also have lawsuits pending,” said Stuart Anderson of the National Foundation for American Policy, a non-partisan body that has done extensive research into immigration issues.
US President Joe Biden has ended the ban on the entry of H-1B visa holders ordered by Trump ostensibly to protect American jobs for Americans in the wake of unprecedented layoffs caused by the Covid-19 pandemic; and has withdrawn an order denying work authorisation to spouses of H-1B visa-holders cleared for green cards.
Biden has also backed an immigration overhaul legislation that seeks to remove country limits on green cards, which, if enacted, will cut waiting time for Indian applicants; and also prevent their dependent children from “aging out” when they turn 21.
