The following discussion involves technical details of the new Trump-Miller H-1B regulations that were published in the Federal Register on October 8 and are due to take effect on December 7 unless blocked by a federal court that is now considering whether to do so. But focusing on the details of the new rules, which are clearly intended to destroy the entire H-1B visa by redefining the term "specialty occupation" out of existence, should not be allowed to divert attention from the larger Trump-Miller quasi-fascist agenda of shutting down America's legal immigrants entirely, not though changing the law, but by presidential diktat.

See Sasha Abramsky in The Nation, May 15:


If They Walk Like Fascists and Talk like Fascists...

(URL not available)

Turning to the details of the new regulations, at a November 23 federal District Court hearing on an action to block Trump's and Miller's new H-1B regulations from going into effect on December 7, the attorney for the plaintiffs argued, with considerable justification, that the new regulations are designed to destroy the entire H-1B program. See, Forbes:

https://www.forbes.com/sites.stuartanderson/2020/11/24/court-hearing-shows-buisness-could-prevail-against-h-1b-visa-rules/?sh=7ae94f187c08

If the courts do not stop the new regulations from going into effect, can H-1B still survive? In order to answer this question, we should look at the new regulations in detail. To summarize, the current definition of an H-1B specialty occupation is one in which the normal requirement of the position is a bachelor degree or the equivalent in the field being offered or a related field.

This allows for a certain amount of flexibility in determining whether the position question is a specialty occupation within the meaning of the H-1B statute. However, the new regulations attempt to change this by eliminating the word "normal" from the regulations and instead requiring that the position must always require a bachelor degree

And the new regulations also attempt to eliminate the concept of a "related" field and instead to demand that the position must require a bachelor degree in the exact field of activity involved in the occupation This would make H-1B approvals virtually impossible to obtain in all but a few cases (such as law and medicine), since the concept of a related field is crucial in almost all H-1B occupations
.
In determining whether a specialty bachelor degree is required for a given occupation, the OOH also almost invariably states that a bachelor degree in the field in question or a related field is acceptable. By eliminating the concept of a related field and requiring an exact match between the offered H-1B position and the educational requirements for that position as listed in the OOH, the new regulations are obviously intended to mean the end of the H-1B visa.

This is not merely conjecture on my part. USCIS's own explanation of the new rule changes shows that its real purpose is to eliminate the entire H-1B program See:

https://www.nafsa.org/regualtory-information/h-1b-interim-final-rule-strengthening-h--1b-nonimmigrant-visa-classification

But there is one obstacle to this devious plan to destroy the H-1B visa without going through Congress as required by our nation's laws and Constitution. This obstacle is in the word "equivalent", which still appears in the new regulations, because it is in the statute and therefore cannot be eliminated. The world "equivalent" can and should be read so as to put back into the regulations both the concept of what is the normal educational requirement for a given position and the concept that a bachelor degree in a related field, not only the exact occupation being offered is an acceptable requirement for an H-1B specialty occupation.

For the text of the new Trump-Miller regulations, which were published in the October 8 Federal Register, see

https://www.federallregister.govdocuments/2020/10/08/2020-2347/strengthening-the-nonimmigrant-h-1b-visa-classification-program

I will explain the above further in Part 2 of this 2-part series.


Roger Algase
Attorney at Law,


Roger Algase is a New York immigration lawyer who has 30 years' experience with H-1B cases. He is a graduate of Harvard College and Harvard Law School. He can be contacted at:

algaselex@g
mail.com or (212) 724-5643