Trump administration moves to change H-1B guest worker program to prioritize higher-wage applicants

Officials said the move will protect the American worker while keeping the economy competitive.

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The Department of Homeland Security moved to make a significant change to the controversial H-1B guest worker program that would prioritize higher-paid applicants.

The proposed rule change is one that will help American workers, Trump administration officials said.

For years, the H-1B visa, for high-skilled workers, has faced allegations it is marred by abuse and used by tech companies to bring in cheaper labor to replace American workers and to keep wages low. Those in favor of the program say it is used to attract talent to fill gaps that the domestic labor market cannot meet.


The proposed rule, formally announced Wednesday evening, would prioritize the selection of higher wage applicants for the approximately 85,000 annual H-1B visas to be allocated each year.

“This is the latest example of President Trump and this administration continuing to take visionary steps to reform the immigration system in ways that protect American workers while also benefiting the economy,” a senior DHS official told Fox News.

Currently, the large number of registrations DHS receives each year are filtered by a randomized lottery, before going on to have their individual applicants scrutinized.

The new rule would mean that registrations would be separated by four wage levels that are already in place (the fourth level is the highest and the first is the lowest) and registrations at the highest wage level would then get to apply first. Once those in the highest level have applied then the process would turn to level III, and so on until the spaces are filled.

“Put simply, because demand for H-1B visas has exceeded the annual supply for more than a decade, DHS prefers that cap-subject H-1B visas go to beneficiaries earning the highest wages relative to their [Standard Occupational Classification] codes and area(s) of intended employment,” the rule says.

According to the DHS, 60 percent of all H-1B jobs were certified in FY2019 at the two lowest wage levels -- both below the local median wage. Under the new system, the DHS predicts that none of the lowest level registrations would be selected and only 75 percent of level II would be chosen. All of those at the top two tiers would get to apply first.

“What this means is the higher wage level you are, the higher the likelihood of being afforded the opportunity to get the H-1B petition approved, and the only element of randomness is the scenario where you have people at the same skill level competing against each other for those last remaining spots,” the senior official said.

The DHS claims it is more consistent with the congressional intent for the program to allow businesses to remain globally competitive.

The move was immediately welcomed by groups that advocate for lower immigration, like the Federation for American Immigration Reform, which has expressed concerns that the visa program is used to replace Americans with lower-paid foreign workers. Trump and other administration officials have expressed similar concerns.

“While there is still much to be done in terms of reforming guest worker programs, moving to a wage-based selection is yet another step in the right direction,” FAIR President Dan Stein said. “The H-1B lottery caters to controversial body shops who flood the market, depress wages, and take jobs from qualified Americans.” 

It’s the latest sweeping change proposed to the program by the Trump administration in recent weeks.


Earlier this month, The Department of Labor announced an interim final rule will change the methodology of the way in which the “prevailing wage” is set. The prevailing wage is what the Department of Labor calculates to be the average wage of similarly employed workers in a specific occupation -- and employers must pay to H-1B workers to ensure wages of U.S. workers are not undercut.

Meanwhile, another DHS rule will narrow the definition of “specialty occupation” that will allow the department officials to increase worksite compliance inspections before and after an H-1B petition, and require the petitioner’s employer to make the application directly -- a move to stop companies from bringing in H-1B immigrants and then contracting them to other companies. 

The Chamber of Commerce has warned that those two rules “have the potential to inflict serious harm upon many American companies.”


But the senior DHS official told Fox News that the rules interact “for making the H-1B program the best it can be for U.S. workers, U.S. businesses and the truly top-notch foreign workers.”

The rule announced Wednesday now goes through a 30-day public comment period for consideration before DHS issues a final rule. Officials said they want to have it in place before the FY2022 H-1B selection process.