US: H-1B rule change worries diaspora families and Indian IT workers
US: After the Department of Homeland Security (DHS) formally announced that future H-1B cap selections will be weighted based on wage levels rather than just a random lottery, a significant change to the US H-1B visa selection process has caused new anxiety among Indian American families and technology professionals.
Published in the Federal Register, the final rule modifies current regulations to permit the selection of “unique beneficiaries toward the H–1B annual numerical limitations and the advanced degree exemption in a weighted manner based on the wage level listed in each H–1B registration that corresponds to the prospective petitioner’s proffered wage.”
The change is being keenly monitored as a possible reorganization of how foreign talent enters the US technology field, since Indian nationals dominate the lengthy employment-based green card backlog and account for a significant portion of H-1B approvals.
The rule, according to DHS, aims to prevent what it called the “continued abuse of the H–1B program to displace and otherwise harm US workers” by addressing “shortages in positions requiring highly skilled or highly educated workers while protecting the wages, working conditions, and job opportunities of US workers.”
Employers, startups, and academic institutions expressed concerns in public comments filed during the regulation process that H-1B professionals “drive innovation, productivity growth, and entrepreneurship” and that foreign students make a substantial contribution to economic growth. Limiting access to international talent might hurt startups and small firms who “cannot compete with the salaries of larger, established companies,” according to a number of comments.
Startups depend on the H-1B program to draw in workers with “niche expertise,” according to one remark, and making the program “more expensive and difficult to use” would “limit the growth of US tech innovation and global leadership.”
DHS denied such allegations. “DHS believes that this rule will facilitate employers of all types and sizes to attract and retain highly skilled and highly paid aliens, rather than restricting access to international talent,” the government said.
The agency highlighted research and statistics that cast doubt on the reality of a STEM labor shortage, including flat or dropping real salaries in computer and mathematical jobs over the last several years, as well as increasing unemployment among recent US graduates in computer science and related subjects.
“DHS views this as an overall benefit to US workers to the extent that this rule will disincentivize US companies to hire fewer low-skilled, low-wage foreign STEM workers,” the department stated, adding that employers could be encouraged to hire qualified US workers who are “currently unemployed or underemployed.”
Many commenters, however, said that the regulation adds more ambiguity to a system that is already complicated. Due to per-country green card limitations, many enter the US as students, go on to Optional Practical Training, and then depend on H-1B sponsorship to continue working as they wait years or even decades for permanent citizenship.
As seen by the comment sections, Indian Americans claimed that the wage-weighted selection process may disadvantage startups, early-career professionals, and research institutions—where many Indian nationals start their US careers—while favoring larger, wealthier companies.
Concerns about “process integrity,” such as possible employer wage manipulation, discrepancies between registrations and petitions, and numerous registrations by connected companies, are also addressed in the final regulation. According to DHS, the revisions were thoughtfully written to reduce litigation and provide a clear legal norm.
The agency concluded that the regulation does not need further environmental or tribal input and is in compliance with Executive Order 12988 on civil justice reform.
According to comments, Indian Americans, many of whom are US citizens with family members on work visas, believe the changes may affect long-term settlement choices, house ownership, and family stability in addition to the job.