October 16, 2020
Data by the DOL’s Bureau of Labor Statistics showing low unemployment rates in the tech sector contradict the Trump administration’s assessment that economic circumstances required the immediate implementation of restrictive rules on H-1B high-skill work visas.
The interim final rules on H-1B high-skill work visas tighten eligibility standards, raise wage requirements by about 30%, and apply greater scrutiny to employers with H-1B workers at third party work sites. DHS predicts its rule will affect more than one third of H-1B petitions.
The government asserted a "good cause" exemption to bypass the normal rulemaking process that would allow input by the public. Both DOL and DHS cited an emergency need to address unemployment to implement their respective rules quickly.
However, 2020's highest unemployment rate in computer and mathematical occupations—where the bulk of H-1B holders work—was 4.6% in August. According to an analysis by the National Foundation for American Policy, “since the year 2000 there have been 51 months with an unemployment rate in computer and mathematical occupations higher than 4.6% and no previous president or federal agency viewed those periods as requiring emergency measures to restrict legal immigration.” The rate in September was 3.5%, up from 3.0% in January 2020.
The Department of Labor’s rule referred to April’s national unemployment rate of 14.7%, while the DHS rule cited August’s 10.2% unemployment rate and the unemployment rate of sectors that include landscaping services, waste management, and janitorial workers. Neither of the rules released in October mentioned September’s 7.9% national unemployment rate or the 4.8% unemployment rate for individuals over 25 years old with a bachelor’s degree or higher.
Why it matters: The new data—by the federal government, no less—makes it more likely that federal courts will block the rules when challenged.