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Controversial H-1B rule change scrapped

A controversial change to the rule that would have hindered international students seeking work in the United States after graduating has officially been scrapped.

The US department of Homeland Security has withdrawn the rule which would have replaced the current lottery system with a prioritisation of applicants offered higher salaries. Photo: Pexels

"It would have made it very difficult for recently graduated international students to gain H-1B status"

The US department of Homeland Security has withdrawn the rule which would have replaced the current lottery system with a prioritisation of applicants offered higher salaries.

The visa is “highly coveted” for international graduates in the states, allowing “employers or companies in the US to hire international graduates with a specific specialty” to work after they finish their course in the country.

“It is great news – [the modification] would have made it very difficult for recently graduated international students to gain H-1B status,” said Miriam Feldblum, executive director the President’s Alliance on Higher Education and Immigration.

“The President’s Alliance has been advocating for the withdrawal of the proposed rule since it was first introduced under the previous administration,” Feldblum continued.

The modification was first introduced under former president Donald Trump, with then USCIS deputy director for policy Joseph Edlow saying the program had been “exploited”.

“It is abused by employers primarily seeking to fill entry-level positions and reduce overall business costs,” Edlow said in January 2021.

The President’s Alliance even joined as a plaintiff in the legal challenge of the rule.

One point in the plaintiff’s argument alleged the ruling “conflicts with the Immigration and Nationality Act and is arbitrary and capricious”.

It also alleged at the time that the Final Rule should have been “set aside because Chad H. Wolf, who was nominated as acting secretary for the DHS after almost 18 months after Kirstjen Nielsen announced her resignation, was not ‘lawfully serving as an acting secretary’”.

“This rule was withdrawn because of a September 15, 2021 decision by the California Northern District Court that former acting secretary of Homeland Security Chad Wolf was not legally appointed to that position, and therefore had no authority to issue it,” said Jill Allen Murray, deputy executive director for public policy at NAFSA.

“I think these kinds of positive developments help to revitalise international student confidence in the US as a welcoming country”

“NAFSA contends that international student graduates need a way to access a path to green cards, if they desire to stay in the US permanently and if there is an employer willing to offer them a permanent position, rather than the international student graduate having to rely on an H-1B lottery for work authorisation,” she continued.

Historically, according to the Canadian Bureau for International Education, the difficulty in gaining an H-1B visa contributed to an “increase in India students at Canadian universities from 76,075 to over 172,000 between the years of 2016 and 2018”.

USCIS received over 300,000 H-1B registrations for the 2022 financial year in 2021.

Despite the hardships that still surround the H-1B visa, the withdrawal of the modification is still encouraging according to Feldblum.

“I think these kinds of positive developments help to revitalise international student confidence in the US as a welcoming country and help spur renewed interest from prospective international students and their families in US higher education,” Feldblum said.

“As importantly, they help reassure the international students who are already here and looking forward to their own post-graduation plans and prospects,” she continued.

Feldblum also said that going forward, the organisation will be keeping an eye on new rule propositions coming up this year.

“We also will be watching what the proposed H-1B modernisation rule that USCIS anticipates releasing for comment in May this year encompasses,” Feldblum warned.

“We need further legislative and administrative actions if we’re to compete effectively for these international students,” she added.

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One Response to Controversial H-1B rule change scrapped

  1. Here’s the problem. Currently, half the H-1b visas go to Offshore Outsourcing companies, that never sponsor anyone for a Green Card and pay the lowest salaries of all the H-1b users.

    The Outsourcing companies game the system by stuffing in a huge number of redundant H-1b requests, the result is the false appearance that there is an H-1b visa shortage. There isn’t.

    The switch to a salary based allocation of H-1b visas would have mostly kicked the Offshore Outsourcing companies out of the H-1b program.

    The result would be all the H-1b visas going to employers that are likely to sponsor people for a Green Card.

    The first year the demand for H-1b visas would be cut in half (because Offshore Outsourcing companies would stop gaming the system).

    In the second year, the backlog of H-1b requests would be cleared out, and ALL THE STUDENTS APPLYING FOR H-1B VISAS WOULD GET ONE.

    So by keeping the status quo, students working for companies on OPT, will continue to have only a 1 in 4 chance of getting an H-1b visa. And industry will be able to continue the false narrative that there is an H-1b shortage.

    When the reality is:

    We give half the H-1b visas to Offshore Outsourcing companies that do nothing but remove entire departments to an overseas location.

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