The Trump Administration continues to issue regulatory rule changes that impact the US higher education and research communities. Regular readers of the Policy Blog will recall that earlier this year the Administration issued multiple proclamations and other policy changes, with regard to legal immigration that impacted the US research community in some way. While the Administration backed off in some of these instances, they never did so completely; in fact, the rhetoric and desire to make lasting changes to the American immigration system remained.
In the last month, the Trump Administration has issued three new rule changes that will impact the higher education and high-tech research communities. Mostly these changes centered around rules and requirements for holders of H-1B visas, however there are changes to holders of F, J, and I visas as well. Let’s get into the details.
The first changes were announced on September 25th and it was a proposed rule change to the “duration of status” for holders of F academic student, J exchange visitor, and I representatives of foreign information media nonimmigrant visas. The change would require a fixed time schedule for the visa holder (2-4 years), allowing for a request to extend, rather than the current “duration of status” (ie: the length of time required to complete their studies). The proposed rule allowed for 30 days for comments before being reviewed for possible adoption; the expectation is the rule will be adopted regardless of the public comments made.
The likely impact of this rule change is obvious to anyone in the higher education community, particular those with experience in masters or PhD programs. Two to four years is frequently not enough time for students to complete their degree programs. This creates uncertainty for foreign students – will they have sufficient time to earn their degree? will they have to reapply? will they be readmitted if they apply? — making the United States a less attractive place for international students to come for their education. Our place as the world leader in computing technologies rests in part in our ability to attract the best and brightest minds to do research in our colleges and universities. Policies that make it more difficult to attract that talent threaten that leadership.
Two other rules were issued jointly on October 8th, though they are technically separate; one by the Department of Homeland Security (DHS) and the other by the Department of Labor (DOL). They were issued using an “Interim Final Rule” mechanism (more on this in a moment). Let’s look at the DHS rule first, which is titled “Strengthening the H-1B Nonimmigrant Visa Classification Program.” The new rule will revise the definition of “specialty occupation” for all H-1B petitions. The new definition requires that employers show that a university degree in a particular field, or in alternate, multiple fields, is “always” required and that the degree must be “directly related” to the job offered. It will also make a degree a requirement to apply for a visa. The previous definition required 1) “theoretical and practical application of a body of highly specialized knowledge” and 2) “attainment of a bachelor’s or higher degree in the specific specialty.” This new rule will create special hurdles for jobs in new and emerging fields, especially in fields where multidisciplinary hiring is prevalent (such as with artificial intelligence) and will create risks concerning the ability of professionals currently in country on H-1B visas. This rule is open for comments until November 9th, and the rule will go into effect on December 7th.
The Department of Labor rule, released on the same day as the DHS rule, concerns High-Skilled Wages (both H-1B and permanent residency). As with the other rule, comments are due by November 9th, however this rule took effect immediately upon being issued. The new rule resets so-called “prevailing wages” for each of four skill levels, by raising each by increment of two to three deciles within the surveyed wage sets, often resulting in salary figure increases of 50% or more. The rule applies to all employers sponsoring professionals for H-1B status or green card status, whether the employer is H-1B cap-exempt or H-1B cap-subject and regardless of the sector of activity. The DOL wage rule will result in US employers being required to pay foreign-born professionals more than their similarly situated American colleagues and present the largest percentage of increase for early career professionals, like international students being hired by US employers from on-campus recruitment. The effect of this rule is to either price out H-1B visa holders or create an untenable conflict for employers between their native-born workers and the visa holders.
Both rules were released as “interim final rules” (IFR). In most cases, Federal agencies must go through a detailed rule making process before issuing new or modify existing regulatory rules. However, the IFR mechanism allows agencies to issue rules immediately, without going through a comment review period, for “good cause.” The rules are final, and as with the above DOL wage rule, they take effect immediately. However, using this mechanism can be problematic for the agencies because it typically sets up immediate legal challenges. Indeed, there are already lawsuits being organized by the US Chamber of Commerce and the National Association of Manufacturers, joined by other organizations, to some of these new rules.
CRA is working with our partners in the science advocacy community and the higher education community to make the case to policymakers that these rules will hurt, not help, the US research community. In the case of the DHS “duration of status” change, multiple members of Congress, Democrats and Republicans, have sent letters to the DHS acting Secretary voicing opposition to the rule. And members of the higher-ed community, as well as the high-tech sector, are preparing for legal challenges against the other two rules. We will keep an eye on all the proceedings and will update the community as news happens, so please check back for updates.