Navigating New H-1B Visa Rules: Compliance Guide for Employers

Welcome to another edition of Dear Sophie, the trusted advice column tackling pressing immigration questions for tech professionals and employers. Silicon Valley immigration attorney Sophie Alcorn shares expert insights to help navigate complex visa regulations.

Dear Sophie,

I’ve been reading about the new H-1B rules for wage levels and qualifying job types. What steps must employers take to comply? Are other visa categories affected?

— Concerned Employer in Richmond

Key Changes to H-1B and Other Visa Programs

Recent interim rules from the Department of Labor (DOL) and Department of Homeland Security (DHS) have introduced significant changes to the H-1B program, with ripple effects across other visa categories. Here’s what employers need to know:

1. Department of Labor (DOL) Rule: Higher Wage Requirements

• Effective Date: October 8, 2020
• Impacted Visas & Green Cards:
  • H-1B, H-1B1, E-3 (specialty occupation visas)
  • H-2B (temporary non-agricultural workers)
  • EB-2 (advanced degree/exceptional ability)
  • EB-3 (skilled worker green cards)

Key Changes:

• Prevailing wage levels have been raised dramatically:

• Example: A Level 2 software engineer in Silicon Valley previously required a \(111,000 salary—now \)140,000 (a 26% increase).
• Startups and small businesses may face disproportionate challenges due to higher compliance costs.

2. Department of Homeland Security (DHS) Rule: Tighter H-1B Eligibility

• Effective Date: December 7, 2020
• Key Restrictions:
  • Degree Specialization: Employers must prove the candidate’s degree directly relates to the job (e.g., mechanical engineering degrees may no longer qualify for software engineering roles).
  • Third-Party Worksites: H-1B workers at client sites now require annual renewals (down from 3 years).
  • Employer-Employee Relationship: Stricter evidence required for offsite workers.

Estimated Impact:

• 33% of H-1B petitions could be denied under the new criteria.
• Additional compliance costs: $25M annually for employers.

Immediate Actions for Employers

1. Renew H-1B Visas Early

   • File extensions before December 7, 2020, to avoid new restrictions.

2. Adjust Wage Strategies

   • Use the updated Foreign Labor Certification Data Center to benchmark salaries.
   • Budget for higher wage obligations, especially in tech hubs like Silicon Valley.

3. Submit Public Comments

   • DOL (open until November 7, 2020): Submit here.
   • DHS (open until November 7, 2020): Submit here.

4. Monitor Legal Challenges

   • The American Immigration Lawyers Association (AILA) is preparing litigation. Employers impacted by the rules may join as plaintiffs.

Broader Implications

• Innovation Economy at Risk: Restrictive policies may hinder hiring for emerging fields like AI, data analytics, and growth product management.
• Job Creation Impact: A 2019 Economic Policy Institute report found that every 100 tech jobs created spawn 418 indirect jobs—highlighting the ripple effect of skilled immigration.

Final Thoughts

While these rules are likely to face legal challenges, employers must prepare for their immediate effects. Proactive compliance and advocacy can help shape a more balanced immigration system that supports both businesses and talent.

Have questions? Submit them here. For more insights, tune into Sophie’s podcast, Immigration Law for Tech Startups.

Disclaimer: This column provides general information, not legal advice. For specific guidance, consult an immigration attorney.

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