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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 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DHS Used Outdated Unemployment Statistics in its H-1B Rule: DHS stated in its H-1B rule: “This [rule] is particularly urgent given the exceptionally high unemployment rate in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.

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