Trump “Hire American” Rule for Foreign Nationals Forces U.S. Employers to Take Less Qualified People

(Photo Credit: Dave Carpenter)

The Trump administration is not always about deregulation: Indeed, when it comes to the H-1B visa— a specialty work visa for high tech workers— the Trump administration is substituting its judgment for Silicon Valley employers, research universities, and other high-standards employers.

Here is the problem as stated by Vic Goel, an immigration policy expert:

“This new regulation would make it possible for a foreign national who recently graduated with a master’s degree from a U.S. university to have a significantly better chance of securing an H-1B visa than an individual with years of relevant experience and a Ph.D. from a foreign university. Because USCIS’s stated goal is to make it easier for the most-skilled or highest-paid to secure H-1B visas, it doesn’t make sense to implement a regulation that allows one who graduates at the bottom of the master’s degree class at the lowest-ranked U.S. university to hold an advantage over the top graduate from a doctoral program at a leading foreign university, such as Oxford or Cambridge.”

This is an elaboration of President Trump’s foolish “Hire American” executive order.

The proposed rule also adds a very tedious new pre-registration requirement. 

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Some readers of this blog will want more information.

See Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens, 83 Fed.Reg. 62406 (2018), https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject.

For analysis of the complex new rule, see Stuart Anderson, New H-1B Rule Likely Unlawful And More Costly For Employers, Forbes (Dec. 10, 2018), available https://www.forbes.com/sites/stuartanderson/2018/12/10/new-h-1b-rule-likely-unlawful-and-more-costly-for-employers/amp/, explaining that Congress enacted legislation to allow 65,000 H-1B visas to be filled without regard to whether the petitioner held a Bachelor’s or Master’s degree, followed by a 20,000 extension of the cap—after the 65,000 petitions are granted— to persons with Master’s degree. The proposed rule flips the order of filling visas, and limits the new quota to foreign graduates of American universities.