Expert Pitch

New rules restricting H-1B visas could harm startups, small businesses

Cornell University
7-Oct-2020 10:30 AM EDT, by Cornell University

As the Trump administration issues two new rules Wednesday that will restrict the H-1B temporary work visa program, Stephen Yale-Loehr, professor of immigration law at Cornell Law School and co-author of a leading 21-volume immigration law series, says that the rules will harm employers and may compel some companies to offshore jobs overseas. 


Yale-Loehr says:

“First, a Department of Labor (DOL) rule will increase wage levels significantly for the H-1B nonimmigrant worker category and for certain employment-based green card applications. The rule changes the prevailing wage levels 1-4 from the 17, 34, 50 and 67th percentiles to the 45, 62, 78 and 95th percentiles of surveyed wages from the DOL’s Bureau of Labor Statistics.

“Second, a Department of Homeland Security (DHS) rule will take effect 60 days after publication in the Federal Register. According to DHS, the rule will:

  • Narrow the definition of ‘specialty occupation’ for the H-1B category;
  • Require companies to make ‘real’ offers to ‘real employees,’ by closing loopholes and preventing the displacement of U.S. workers; and
  • Enhance DHS’s ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H1-B petition is approved.

“Current H-1B regulations already require employers to pay foreign workers the higher of the prevailing wage or the actual wage paid by the company. By increasing the required wages, the new rules will harm all employers trying to hire foreign workers, but especially startup companies and smaller firms who may not be able to meet the increased wage requirements. DOL and DHS justify the new rules as a way to help U.S. workers, but they may have the opposite impact. Companies may decide to offshore jobs overseas, hurting U.S. workers.

“I am confident that litigation will challenge these new rules.”


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