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In Spite of Losing in Court, The Administration Continues to Impose H-1B Visa Restrictions, With International Students as The Next Target, In Order to Appease Those Calling for A Halt to All Immigration


In spite of the courts continually ruling that the administration is blatantly violating immigration laws via its policies on H-1B petitions, in May, the Trump administration announced that it would likely propose another set of immigration restrictions on H-1B visas for foreign-born engineers and scientists, as well as visas for foreign students, arguing that they take jobs away from Americans even though the statistics show that these policies hurt the economy due to a number of American industries currently relying on foreign labor. This is especially the case for companies that provide information technology to other American companies; companies such as Cognizant, Infosys, and Deloitte; all of which experienced H-1B denial rates ranging from 40 to 60 percent in fiscal year 2020. According to the CEOs of these companies, restricting access to this vital labor is the best way to harm US competitiveness.

Even though the denial rate for new H-1B petitions are currently at record levels (a reported average of 30 percent in fiscal year 2020 compared to six percent in fiscal year 2015), in late April, the administration also issued a proclamation suspending the entry of most immigrants for at least 60 days and ordering additional measures on temporary visas. New restrictions on both H-1B visas and F-1 students, as well as others, are expected to result.

Enabling Petition Denial by Redefining “Specialty Occupation”

US Citizenship and Immigration (USCIS) has also established a new standard for deciding on H-1B petitions for companies that provide information technology services. This is concerning given that immigration law does not allow for different standards to be created based upon the type of work an application involves.

One of the issues that USCIS continues to lose on in court is this concept of “specialty occupation,” whereby the agency tries to come up with whatever definition is necessary to justify rejecting as many petitions as possible, and the courts find this to be arbitrary and capricious. As a result, the proposed H-1B regulation that is currently on the agenda – but has not yet been issued – would revise the definition of specialty occupation, as well as other key definitions (such as the definition of employment and the employer-employee relationship) and impose additional requirements that would effectively place as many burdens on employers who employ H-1B visa holders as possible. Following a 20-day review, the administration could recommend moving forward with it.

Next Target: The Optional Practical Training Program for International Students

Based on additional statements from the administration, the Optional Practical Training program, which involves students coming to the US to study in technical fields, is also a target of the administration’s. These considerations appear to be influenced by those in the administration who have tried to limit the ability for all Chinese citizens to study in the US by any means possible.

If You Have Any Questions or Concerns, Contact an Experienced Immigration Attorney

H-1Bs are crucial in that they are essentially the only way for foreign nationals to work in the US on a long-term basis. However, although the administration is doing everything that it can to make it as hard as possible for individuals and families to establish themselves or reconnect here in the US, the courts often find these policies to be illegal when challenged in court. If you have any immigration legal questions or concerns, contact experienced North Carolina immigration lawyer Rashad Hauter of Hauter Law Firm, PC. Our office is read to help you address your needs to achieve the best possible outcome.



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