Comment: New Trump Attack Drives H1B to EB5

USCIS and DOL will be publishing interim final rules in the Federal Register tomorrow that are the most comprehensive attack on H1Bs in history. See the advance copy of the USCIS regulation here and and the advance copy of the DOL regulation here . Many attorneys will be producing detailed analyses of these regulations shortly, but we would like to note the regs include the following:


  • Dramatic escalations of prevailing wage
  • Switch from specific position requirements to occupation requirements, making H1B eligibility more stringent
  • Elimination of terms such as “usually”, “normally” and “most” thus making criteria for obtaining a H1B visa absolute and very difficult to fulfill
  • Much, much more - they say that the devil is in the details, and there is a whole armada of devils in the hundreds of pages of these two new regulations

What is the impact of these regulations?


  • They are the most comprehensive attack on H1B visas in history which will result in denial of H1B renewals for half a million people currently on H1Bs, and a dramatic reduction of H1B new employment.
  • These regulations are being published for political reasons. Publishing of these regulations before the election throws red meat to anti-immigrant Trump-supporters who believe that H1B is one of the biggest bogeymen responsible for all the ills of our country.
  • Basic steps required by the Administrative Procedure Act have been waived to rush the publication of these rules. Court challenges are sure to follow, and attorneys say there is a good chance of success eventually.

Since late 2018, H1Bs in the USA have constituted the largest EB5 market in the world, larger than any specific country. These draconian regulations and the resultant fear among H1Bs will increase the demand for EB5. Even if 0.5% of the half million H1Bs affected by these regulations go in for EB5, that’s 2,500 EB5 wires. Even if that is spread over 3 years, it would meaningfully and dramatically expand the H1B to EB5 market in the USA.


Please let us know your thoughts by writing to editor@ilw.com.

Article: DOL Interim Final Rule Advance Copy Indicates Changes to Computation of Prevailing Wage Effective October 8, 2020 By Wolfsdorf Rosenthal LLP

Blogging: New DHS/DOL rules put H-1B on life support. Democracy and rule of law are threatened by Trump/Miller assault on legal immigration By Roger Algase

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