In an end-run around Congress, the Trump administration has proposed a revision to the H-1B work visa program, which provides temporary visas to skilled foreign workers. The Department of Homeland Security (DHS) states that it is issuing the visas pursuant to President Trump’s “Buy American and Hire American” Executive Order, which vaguely requires agencies “to protect the interests of United States workers in the administration of our immigration system.”

One important aspect of this new 139-page proposal flatly contradicts the scheme that Congress created, and for this reason, it may never take effect. The stated goal of this particular portion of the regulation is to “prioritize petitions filed on behalf of beneficiaries who have attained a master’s or higher degree” (p. 44), but the specific changes that it makes contradict the intent of Congress and would have—in earlier years—reduce the total number of H-1B visas. 

Under current law, H-1B visas have a quota of 65,000 (8 U.S.C. 1184(g)(1)(A)(vii)). However, there are several categories of H-1Bs who are exempt from this quota—college professors, nonprofit researchers, and those with a master’s degree or higher for a U.S. university (8 U.S.C. 1184(g)(5)). The master’s degree holder exemption, however, has a separate cap of 20,000. Once the number of visas for master’s degree holders reaches 20,000, any additional count against the overall cap (8 U.S.C. 1184(g)(5)(C)).

DHS’s new revision to the H-1B program, however, would first count master’s degree holders against the overall H-1B cap of 65,000 and only then count them against the master’s exemption, the opposite of what the law requires. DHS comments (pp. 10-11):

Changing the order in which USCIS selects beneficiaries under these separate allocations will likely increase the total number of petitions selected under the regular cap for H-1B beneficiaries who possess a master’s or higher degree from a U.S. institution of higher education each fiscal year … Conversely, this process will likely decrease the total number of petitions selected for H-1B beneficiaries with less than a master’s degree …

In recent years, the H-1B cap is filled immediately, so DHS puts all the applications in two lotteries. First, the master’s degree holders are selected, and then after that, any master’s degree holders who aren’t selected are placed in the second lottery. Inverting the order increases the probability of master’s degree holders being selected in the initial allocation.

The problem here is twofold. First, the statute clearly prohibits counting master’s degree holders against the overall H-1B cap until after the master’s exemption is filled. To quote the statute (8 U.S.C. 1184(g)(5)(C)) directly:

(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien … who … (C) has earned a master’s or higher degree from a United States institution of higher education (as defined in section 1001(a) of title 20), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000. (Emphasis added)

DHS cannot legally count master’s degree holders against the overall H-1B quota before the master’s exemption is filled. In other words, Congress did not want to increase the probability of master’s degree holders being selected in the overall H-1B cap. It just wanted to provide a guarantee of 20,000 visas for master’s degree holders. Not only does DHS not address the statutory issue here, it never even quotes the statute directly. On this point, it merely states (p. 11):

DHS believes that amending its regulations in this manner would increase the chances that beneficiaries with a master’s degree or higher from a U.S. institution of higher education would be selected under the H-1B regular cap, which is generally consistent with congressional intent in enacting section 214(g)(5)(C) to prioritize these workers … (Emphasis added)

I find the use of the word “generally” here to be a telling admission. Either this change is consistent with congressional intent or it is not. It cannot be “generally” consistent. “Generally” implies that in some respects, it may not be consistent.  Whoever chose to include that word must have known that it was not, in every respect, consistent with the law.

The second problem with this change is that it is a clever effort to decrease H-1B admissions. DHS writes (p. 26):

USCIS is proposing to count all registrations [including master’s degree holders] toward the H-1B regular cap projections first, even in years when a random selection process [i.e. a lottery] at the end of the initial registration period may not be necessary. (Emphasis added)

In years where the cap is not immediately filled, the new scheme could thwart the intent of Congress in another way: by reducing the overall number of visas available. Suppose 20,000 master’s degree holders apply during a year, while 65,000 bachelor’s degree holders apply. There should be enough visas for everyone under Congress’s scheme. But under DHS’s regulation, the 20,000 master’s degree holders would be counting against the 65,000 cap throughout the year. Once that’s hit, then there’s maybe 5,000 master’s degree holders left and 15,000 bachelor’s degree holders. But only the 5,000 can get visas under the master’s exemption, resulting in a 15,000 visa cut to the H-1B program. Something like this situation would probably have occurred during the FY 2011 allocation, which took 10 months to fill.

DHS never even acknowledges this issue, implying that the change could never matter to the overall numbers. The Trump administration has once again disguised a potential cut to legal immigration as a “merit-based” immigration reform, and it has done so in violation of the law. While the president has thwarted the plain meaning of other statutes in the past in order to cut immigration, the statute is so clear that he might just lose this time.