Over roughly the past twenty years, Congress has passed various statutory measures intended to align business immigration with the demands of the marketplace and to stabilize the role of foreign nationals in contributing to U.S. economic interests. But in the aftermath of these Congressional enactments, these measures never went through the rulemaking process to provide consistency in implementing Congressional intent. This article deals with one such measure, the High-Skilled Worker Rule, which is the initial attempt to provide regulatory clarity to the statutory effort to strike a balance between the contributions of foreign professionals and high-skilled workers. The High-Skilled Worker Rule was created with the desire to preserve employment opportunities for U.S. workers in the new economy.
There are three major Congressional actions that form the basis for the regulations discussed in this article. First, the American Competitiveness and Workforce Improvement Act (ACWIA) purported to address high-skilled worker immigration to the U.S.—in particular, immigration through the H-1B Temporary Worker nonimmigrant visa program—to protect U.S. workers and to help retrain workers for the challenges in the new economy. Although the Act was somewhat restrictionist in substance, it temporarily increased H-1B visas to remediate the oversubscription of H-1B visas that occurred for the first time just before the statute’s enactment.
Shortly thereafter, Congress enacted the American Competitiveness in the 21st Century Act (AC21). AC21 had a wide-ranging and generally promotive set of initiatives intended to increase stability to foreign nationals—particularly H-1B workers. AC21 was passed in light of changing business circumstances, the strength of the U.S. economy, a greater recognition of the positive role of foreign workers to U.S. economic development, and the increase in immigrant visa backlogs lengthening the time required for many beneficiaries of approved immigrant visa petitions to attain permanent resident status. Among the main provisions introduced by AC21 were: (1) the portability provisions enabling foreign nationals to change jobs without jeopardizing their immigration status; (2) provisions allowing for the temporary expansion of the H-1B numerical allotments; (3) the extension of H-1B status in designated circumstances beyond the statutorily-imposed six-year limit; and (4) the creation of exemptions from the H-1B quota (cap exemption) for “institutions of higher education” and certain qualifying entities and/or employment situations.
Finally, the H-1B Visa Reform Act of 2004 created a permanent—although incremental—amelioration to the ongoing oversubscription of the H-1B visa numbers by adding 20,000 H-1B visas for foreign nationals holding advanced degrees from U.S. universities. While these enactments arguably did not go far enough in aligning U.S. immigration law and policy with the demands for workers in the new economy, they collectively represent initiatives intended to provide a greater measure of stability both to employers and foreign nationals. Moreover, these enactments recognize the benefits provided by certain classes of foreign nationals—in particular, high-skilled workers—to economic growth.
In the aftermath of these statutes, implementation was left to a hodgepodge of administrative directives, isolated adjudications, administrative decisions, and administrative actions, rather than undergoing the rigors of regulatory rulemaking. It is beyond the purview of this article to speculate on the causes of this inaction in the issuance of regulations. But the authors note that the role of foreign nationals, their contributions to the nation’s welfare, and their impact on job creation and retention for U.S. workers is a subject of ongoing debate.
In anticipation of a sharp change in immigration law and policy, the long-percolating regulations implementing the three above- cited statutes were released with an effective implementation date of January 17, 2017—three days before the inauguration of President Donald J. Trump. The Final Rule, entitled “Retention of EB-1, EB- 2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (“High-Skilled Worker Rule” or “Rule”) intends to provide regulatory guidance— particularly to AC21 and to a somewhat lesser extent, ACWIA—in order to create “improved processes and increased certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers; greater stability and job flexibility for those workers; and increased transparency and consistency in the application of DHS policy related to affected classifications.”
This article is focused on three main objectives. First, the article analyzes the High-Skilled Worker Rule’s role in synthesizing previous policy and practice as well as in identifying new measures relating to H-1B workers, the eligibility of foreign nationals to obtain and maintain employment authorization, and greater stability and predictability in the employment-based permanent resident process. Second, the article identifies areas of employment-based immigration that have yet to be addressed through regulations, even though statutory enactments have set the foundation. And finally, the article provides initial thoughts on the relevance of the High-Skilled Worker Rule in light of new policies and sentiments expressed in the “Buy American/Hire American” initiatives that perceive immigration as a zero-sum game that acts largely to the detriment of U.S. workers.