Tech Employment Data Contradict Need For Quick H-1B Visa Rules

New government data show the low unemployment rate in computer occupations contradicts Trump administration claims an economic emergency requires the quick implementation of new H-1B visa rules. A new analysis indicates the government’s own data do not support the claims made in the regulations, which makes it more likely federal courts will block the new rules.

On October 8, 2020, the Department of Labor (DOL) and the Department of Homeland Security (DHS) published “interim final” rules to restrict H-1B visas, asserting a “good cause” exception to the Administrative Procedure Act (APA) to allow the H-1B rules to go into effect quickly without permitting the public to comment. DOL and DHS cited an emergency need to address unemployment as a reason for bypassing the normal rulemaking process.

Low Unemployment Rate in Computer Occupations: “The U.S. unemployment rate for individuals in computer occupations stood at 3.5% in September 2020, not changed significantly from the 3% unemployment rate in January 2020 (before the pandemic spread in the U.S.),” according to an analysis of the Bureau of Labor Statistics’ Current Population Survey by the National Foundation for American Policy (NFAP). “A similar measure of the U.S. unemployment rate in computer and mathematical occupations, which appears on the BLS website, also found a rate of 3% in January 2020 and 3.5% in September 2020. The rates are well below the unemployment rate of 7.8% for non-computer occupations.”

Approximately two-thirds of H-1B visa holders work in computer-related occupations, according to U.S. Citizenship and Immigration Services (USCIS), but the DHS and DOL rules spend much time citing the nation’s overall unemployment rate in 2020 rather than focusing on the more relevant computer occupations.

The DOL rule cited the overall U.S. unemployment rate of 14.7% in April 2020 but failed to mention the September 2020 national unemployment rate had dropped to 7.9%. DHS and DOL also invoked the June 2020 presidential proclamation to suspend the entry of H-1B and other visa holders even though a federal judge issued a preliminary injunction blocking the proclamation.

DHS Used Outdated Unemployment Statistics in its H-1B Rule: DHS stated in its H-1B rule: “This [rule] is particularly urgent given the exceptionally high unemployment rate in the United States – 10.2 percent as of August 7, 2020.” But as the National Foundation for American Policy analysis notes, the U.S. unemployment rate of 10.2% cited by DHS was already two months old when DHS issued its rule. The U.S. unemployment rate declined from 10.2% in July to 8.4% in August 2020 and 7.9% in September – and without a new regulation from the Department of Homeland Security.

For individuals 25 years and over with a bachelor’s degree or higher, the national unemployment rate fell from 6.7% in July 2020 to 4.8% in September 2020.

High Number of Active Job Vacancy Postings in Computer Occupations: Beyond the low unemployment rate in computer (and mathematical) occupations, there is another indicator that illustrates the demand for technical skills in the U.S. economy remains high. As of October 2, 2020, there were 655,386 job vacancy postings advertised online in the previous 30-day period for jobs in the most common computer occupations that typically require at least a bachelor’s degree, according to Emsi Job Posting Analytics. That represented a 4.7% increase for job vacancy postings in those occupations since May 2020.

There are over 280,000 active job vacancy postings in the U.S. for software developer (applications), more than 92,000 for network and computer system administrator and 79,819 for computer systems analyst. These are the types of occupations that both U.S. professionals and H-1B visa holders typically fill.

Historical Unemployment Rates in Tech Fields: History presents another significant problem for the argument in the Department of Labor and Department of Homeland Security H-1B rules that the unemployment rates in 2020 justify a “good cause” exception. The highest unemployment rate for computer and mathematical occupations in 2020 was 4.6% (in August). “The 4.6% unemployment rate in those occupations has been exceeded in 51 individual months since 2020 and the Department of Labor never previously cited it as a reason to issue a regulation to change H-1B prevailing wage rates, including immediately as an interim final rule,” concluded the NFAP report.

Questionable Stats in DHS Rule: The DHS H-1B rule cited the unemployment rates in the Information sector and the Professional and Business Services sector in its regulation. “It is not valid to use the unemployment rate in the Information sector and Professional and Business Services sector to justify the ‘good cause’ exception to the Administrative Procedure Act to restrict H-1B visas, as DHS does in its rule, since only approximately 10% of the jobs (computer occupations with a B.S. or higher) in these sectors are in occupations similar to professionals in the H-1B category,” notes NFAP.

The sectors include a variety of companies. The Professional and Business Services sector includes landscaping services, waste management and remediation services, travel arrangements and reservations and other types of businesses unlikely to hire many H-1B visa holders. The Information sector includes newspaper publishers, radio and television broadcasting and book publishers. Two of the top five jobs in the Information and the Professional and Business Services sectors are janitors and landscaping and groundskeeping workers, with managers, software developers and lawyers representing the other three.

These are broad industry sectors that gather employment data not by occupation but count all the employees in a company in that sector. More than 40% of the employees in these two sectors have less than an undergraduate degree. DHS should not be citing statistics from these sectors in its regulation to justify H-1B visa restrictions.

The DOL and DHS rules are far-reaching and would make it difficult for international students to work in the United States after graduation and for foreign-born scientists and engineers to remain in H-1B status or gain permanent residence. To justify bypassing the normal rulemaking process, DOL and DHS omitted relevant data and focused on statistics in the rules that were outdated or not relevant. It seems fair to conclude that when it issued the new H-1B regulations, the Trump administration did not have the facts on its side.

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