On October 8, DHS published a long expected new interim rule, with only a 30-day period for comments, with the Orwellian title; “Strengthening the H-1B Nonimmigrant Classification Program”.

The real purpose is to weaken this program, almost to the vanishing point. While the following does not purport to be an analysis of the entire lengthy rule, there is one feature that not only stands out, but jumps off the pages of the new interim rule. This is in the definition of “specialty occupation“, which is at the heart of the H-1B visa.

Under current regulations, as they have been interpreted for the past 30, years, a specialty occupation is defined as one which “normally” requires a bachelor degree or equivalent in or related to the offered H-1B position. The new regulation would change the world “normally” to “always”. This is a huge change.

In deciding whether a given position qualifies for H-1B, USCIS adjudicators invariably rely on a DOL publication called the Occupational Outlook Handbook (”OOH”), which describes the educational requirements for almost every occupation known. In the overwhelming majority of occupations that are recognized as H-1b occupations today, the OOH says that a related bachelor degree is the “normal” requirement for the position. “Always” requiring the degree describes very few positions, generally ones requiring licensure such as law, medicine, psychology and a small handful of others.

The result would be to virtually eliminate the H-1B program, which is in many respects the heart of America’s entire legal immigration system, at least for skilled and professional workers. This change would make it impossible for hundreds of thousands of H-1B workers, most of whom are from India, China and elsewhere outside Europe, to extend or change their employment, or to remain in the US while waiting for green cards. It would overturn 30 years of H-1B law purely by administrative action.

This is in keeping with Trump’s and Stephen Miller’s approach of making major changes in the immigration laws entirely through executive or administrative action with no input from Congress at all. America’s democracy is already in acute danger from a president who only one day ago, let loose a blast at his Attorney General and Secretary of State for not taking action to prosecute and lock up his political opponents, including Joe Biden, Barack Obama and Hillary Clinton.

Very arguably, Trump’s authoritarian tendencies had their origin in his attempts to change the immigration laws without Congress, as required by the Constitution. The result could be the end of America’s democracy.

Roger Algase
Attorney at Law