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The interim final rule announced by the Department of Homeland Security on Tuesday, less than four weeks ahead of the US presidential election, will narrow the definition of “specialty occupation” as Congress intended by closing the overbroad definition that allowed companies to game the system.
It will also require companies to make “real” offers to “real employees,” by closing loopholes and preventing the displacement of the American workers. And finally, the new rules would enhance the department’s ability to enforce compliance through worksite inspections and monitor compliance before, during and after an H1-B petition is approved.
The H1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise.
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Such a decision by the Trump administration is likely to have an adverse impact on thousands of Indian IT professionals. Already a large number of Indians on the H-1B visas have lost their jobs and are headed back home during the coronavirus pandemic that has severely hit the US economy.
According to the Department of Homeland Security, the interim final rule to be published in Federal Register will be effective in 60 days.
According to the Department of Homeland Security, the US Citizenship and Immigration Services is forgoing the regular notice and comment period to immediately ensure that employing H-1B workers will not worsen the economic crisis caused by COVID-19 and adversely affect wages and working conditions of similarly employed US workers, it said.
The pandemic’s economic impact is an “obvious and compelling fact” that justifies good cause to issue this interim final rule.
“We have entered an era in which economic security is an integral part of homeland security. Put simply, economic security is homeland security. In response, we must do everything we can within the bounds of the law to make sure the American worker is put first,” said Acting Secretary Chad Wolf.
US Secretary of Labour Eugene Scalia said that these changes will strengthen foreign worker programmes and secure American workers’ opportunities for stable, good-paying jobs.
“The US Department of Labour is strengthening wage protections, addressing abuses in these visa programmes and ensuring American workers are not undercut by cheaper foreign labour,” she said.
In a conference call with reporters, Deputy Labour Secretary Patrick Pizzella said that these changes were long overdue and it had become imperative in light of the current conditions in the US labour market.
“We”re making good on the president”s promise to protect Americans from those who seek to exploit the system for their gain,” he said, adding that the rule would “ensure that Americans are first in line for American jobs as we continue our recovery”.
According to the Department of Homeland Security, the H-1B programme was intended to allow employers to fill gaps in their workforce and remain competitive in the global economy, however, it has now expanded far beyond that, often to the detriment of US workers.
Data shows that more than half-a-million H-1B nonimmigrants in the United States have been used to displace US workers, which has led to reduced wages in a number of industries in the US labour market and the stagnation of wages in certain occupations, said the Department of Homeland Security.
“This is part of a larger Trump administration goal in coordination with the Department of Labour to protect American workers,” it said.
The Department of Labour said that the prevailing wage rates in these programmes play an integral role in protecting US workers from unfair competition posed by the entry of lower cost foreign labour into the US labour market.
It is essential that the methodology used by the Department in calculating the prevailing wage rates accurately reflect what US workers performing the same kinds of jobs and with similar qualifications make to ensure employers cannot use foreign workers in place of US workers, it said.
The Interim Final rule, it said, will improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed US workers.
This will ensure that the Department more effectively protects the job opportunities and wages of American workers by removing the economic incentive to hire foreign workers on a permanent or temporary basis in the US over American workers, it said.
Trump, a Republican, is seeking another term in the White House. He is being challenged by former Vice President Joe Biden of the Democratic Party in the November 3 presidential election.
In June, the Trump administration suspended the H-1B visas along with other types of foreign work visas until the end of 2020 to protect American workers.