According to the new analysis, a Trump administration rule ending the H-1B lottery will make it more difficult for international students to receive an H-1B petition and operate in the United States. Even though the Trump rule’s enforcement has been postponed, analysts expect the Biden administration will support the rule.
The fight over the regulation will decide whether American universities can rebound from the students who left during Trump’s presidency and as a result of Covid-19. According to Immigration and Customs Enforcement, “new foreign student enrollment in U.S. schools decreased by 72 percent in the calendar year 2020 relative to the calendar year 2019.” (ICE).
The H-1B lottery, which distributes H-1B petitions by random selection when USCIS receives more H-1B registrations than the 85,000-annual cap allows, will be replaced by the Trump administration law, which was released only weeks before Donald Trump left office.
Instead, the proposed regulation will instruct USCIS to pick H-1B petitions from the highest to lowest pay level under the Department of Labor’s wage system, beginning with those paying at Level 4 salaries, which are usually the most skilled employees, and moving down to Level 3, Level 2, and Level 1 applicants (entry-level).
International students are disadvantaged by the rule because selecting H-1B petitions based on salary level benefits those with the most work experience over those with the least.
According to an NFAP analysis of actual cases of recent international students and H-1B petition filings, “under the current H-1B lottery system, an international student maybe 54 percent more likely to get an H-1B petition than under the Trump administration’s regulation that would end the H-1B lottery,” according to an NFAP analysis of actual cases of recent international students and H-1B petition filings.
“The data show that the new rule would have a substantial negative impact on foreign students’ ability to obtain an H-1B petition.”
According to NFAP, the law firm Curran, Berger & Kludt presented 170 cases of F-1 students who applied for H-1B limit selection in FY 2018, FY 2019, FY 2020, and FY 2021. “Under the new scheme, which chooses H-1B petitions at random, the H-1B lottery selected 60 percent of F-1 students.
The law firm did, however, provide details on the pay levels (Level 1 through 4) for the students’ H-1B applications, and NFAP discovered that if the new rule had been in place, only 39% of the students’ H-1B petitions would have been approved.”
The Department of Homeland Security (DHS) concluded when it released the rule that no applicants for H-1B petitions paying Level 1 wages would be selected under the new system, and only about half of those paid Level 2 wages would receive H-1B petitions.
Meanwhile, all Level 3 and Level 4 employees will be qualified for an H-1B petition. According to the DHS, employers can plan to increase certain salaries (beyond market wages) to boost the chances of selection after the rule takes effect, which means even fewer people paying at Level 2 would be eligible for an H-1B petition.
It’s only standard that international students with no work experience will be paid at Level 1 or Level 2. According to the NFAP report, “Among the firm’s cases for the four cap years analyzed (FY 2018 to FY 2021), 53 percent of foreign students were paid at Level 1, and 37 percent were paid at Level 2 (i.e., 90 percent combined).”
“As previously mentioned, DHS notes in the rule that no one at Level 1 will receive an H-1B petition under its simulation, and only about half of those paying at Level 2 salaries will be chosen for an H-1B petition.”
The NFAP discovered a noteworthy feature of the law that demonstrates its influence was understudied. There are 11 occupations for which “individuals paying Level 1 wages will be unable to receive an H-1B petition under the law, even though their Level 1 salaries are currently higher than the median pay for Level 3 for all occupations ($109,886),” including doctors, internists, pediatricians, dentists, and computer and information technology administrators.
The Biden administration has promised to “follow the science.” Still, ironically, if the regulation goes into effect, it would be extremely difficult for microbiologists and medical scientists to obtain H-1B petitions. “More than half of the labor situation applications for those occupations in FY 2019 were for Level 1, and nearly 90% were paying at Level 1 or Level 2,” according to NFAP.
The US Chamber of Commerce, along with other business and education organizations, has filed an amended lawsuit, claiming that the legislation ending the H-1B lottery is unconstitutional.
In an interview, Dan Berger of Curran, Berger & Kludt said, “Many foreign students are leaping faith in many cases to abandon their homes and families and come to study or work in the United States with the expectation of being able to get continued immigration status to pursue their career plans.”
The rule resulted from a series of Trump administration policies aimed at discouraging international students from coming to the United States and working once they arrived. It reflected the same zero-sum approach to economics and the labor market underpinning much of Trump’s immigration policies.
It is up to the Biden administration to determine whether or not to continue this aspect of Donald Trump’s and Stephen Miller’s anti-immigration agenda.
At the time, education groups cautioned that the Trump administration’s regulation would damage international students and make studying in the United States less appealing. The most recent analysis backs them up.
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