Joe Biden Could Reverse Huge Parts of Trump H-1B Policies

With Joe Biden declared the winner of the 2020 U.S. Presidential election, it’s worth delving into his potential policies regarding tech immigration and the H-1B visa. Although Biden has suggested he will focus much of his attention on the ongoing COVID-19 pandemic (as well as its economic repercussions), it seems likely that he’ll shift to immigration-related issues at some point in his presidency.

Before the election, we compared the respective H-1B policies of Biden and Donald Trump. While the Trump administration has spent the past four years restricting the H-1B (including Trump’s temporary ban on the visa earlier in 2020), Biden’s campaign suggested it would revert many Obama-era immigration policies.

For instance, Biden’s campaign website offered a straightforward position on work-based immigration:

“[Biden] will increase the number of visas offered for permanent, work-based immigration based on macroeconomic conditions and exempt from any cap recent graduates of PhD programs in STEM fields. And, he will support first reforming the temporary visa system for high-skill, specialty jobs to protect wages and workers, then expanding the number of visas offered and eliminating the limits on employment-based green cards by country…”

Although Republican control of the Senate could make it hard for Biden to push through any kind of sweeping immigration reform, at least in the near future, it’s very possible (and probable) that he will spend the early months of his Presidency issuing executive orders that negate Trump’s executive orders, including the temporary ban on the H-1B.

In addition, the Biden administration could order U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) to reverse many Trump-era policies, including the recent attempt to switch out the existing H-1B lottery for a selection system based on H-1B applicants’ potential salaries. Other changes could include reversing DHS’s recent, more restrictive changes to the definition of “specialty occupation,” which is one of the key ways of determining who’s eligible for an H-1B, as well as readjusting the Department of Labor (DOL) decision about H-1B salary tiers.

One big question is whether the Biden administration will do anything to reverse the Trump administration’s attempts to ban the H-4 EAD, which allows the spouses of H-1B holders to work within the U.S. That ban over the H-4 EAD has been working its way through the court system for more than a year. 

Over at Forbes, there’s an excellent breakdown of the other ways that Biden could adjust immigration policy, including tweaking the per-country limit for employment-based immigration. Whatever the next few years hold, it’s clear that things could start looking very different on the H-1B front. 

23 Responses to “Joe Biden Could Reverse Huge Parts of Trump H-1B Policies”

  1. Jake Leone

    Under Obama, the Offshore Outsourcing companies were taking up more than half of the H-1b visas. The paid off think tanks were all saying, H-1b creates jobs. Yet, half the H-1b visas went to Offshore Outsourcing companies, who do nothing but remove entire jobs. We were then given the tripe that making corporations more profitable, ultimately leads to more jobs. But, under Obama, corporations kept money offshore, to avoid U.S. taxes. (And Joe plans to return to those same high corporate tax rates).

    If and when the money came back in, it was to buy commodities. And in doing so help raise the cost of oil and gas to record heights (because farming and mineral extraction are energy intense), which it was during Obama administration (in the middle of a prolonged recession). Of course, Democrats will shoot themselves (perhaps ec

    Offshore Outsourcing companies want us to keep the IDIOTIC lottery for H-1b visas. Because they stuff in an excess number of requests. For workers, at the lowest salaries (hence a return to the lower pay scale, will help Offshore Outsourcing companies expand their business in the United States).

    Joe Biden would be completely insane to return to the idiotic lottery and to lower the pay scale for H-1b workers, back to below the starting wages for U.S. interns.

    Such idiocy is born of the need to get big corporate campaign donations. Hence, politicians are selling your job to the highest bidder, and that is the problem with career politicians, who need money to stay in office.

    Joe Biden must know that Offshore Outsourcing companies have been removing entire departments to India. Joe Biden must know that, under the Obama administration, during the slowest recovery in U.S. history, India build 100 billion dollar per year Service export industry, and the United States was (and is) 80% of that business.

    I have said this before, the Democratic candidate doesn’t care about Americans getting jobs. We are nothing but political pons.

    Gig work, that’s what America’s young people have to look forward to.

    The Gig work Generation. Generation GIG. Will continue to struggle, because they voted in a career politician who will greatly expand the market in the United States for the Offshore Outsourcing companies.

    Guys like me, who can adapt (I have changed major programming languages 3 times now). Who have massive experience are going to stay working. But new workers are going to be shut-out. Their departments shipped overseas.

    The GIG Generation is going to get what it deserves under Joe Biden, that’s for sure.

  2. Jake Leone

    Of course, Democrats will shoot themselves (economically) when given the chance, by restricting oil and gas production. Funny, how the Paris climate accords (which Joe has said he wants to rejoin). Gave India and China a 15 year exemption from the restrictions of the climate accords.

    Right now, China is the world’s biggest polluter. India burns more coal than all the other countries combined. So tell, where’s the sanity in rejoining a Paris climate accord that allows the 2 biggest polluting countries on Earth, to greatly expand that pollution without any repercussion.

    No, it is completely insane, and that kind of insanity is what you get with bought off politicians.

  3. Tim Langan

    Biden administration scares the hell out of American IT workers right now.
    People are may get replaced because of Cheap Labor. H1B wages are at 1989 wage levels of 60 k minimum. That means if company pays 60 k to H1B then H1B can legally replace a US Citizen. We all know, Disney Corp. had laid off dozens of its American IT staff, and replaced them with foreign workers on the H-1B work visa.

    • Please don’t try to speak for ALL American IT workers. A Biden presidency may scare you but doesn’t mean that it scares all. I get that we all want jobs but all the other policies that Trump has done on climate, the pandemic, the economy will hurt American workers and their families more. Those are the policies that have to be reversed. Biden is going to be very busy and right now, the unprofessional Republicans are standing in his way.

      • @JT: the “unprofessional Republicans” are simply waiting for a CERTIFIED winner, not one chosen by the AP. What you need to understand is that the unprofessional DEMOCRATS stood in the way of Trump at every turn for the LAST FOUR YEARS with unnecessary litigation, unfounded impeachment proceedings, inquiries, investigations and just plain blocking things he was trying to accomplish; all at the cost of the American taxpayer. All of this interference just caused undue costs and distraction, rather than focusing on the needs of the American people. Now tell me… how was this helpful?

      • jake leone

        There is really only one problem right now, the pandemic. That “pandemic” will go away, as a problem, with the vaccine. A vaccine developed under the Trump administration, with the help of operation “Warp Speed”. Once everyone has some amount of immunity to Covid-19, it will not be any more deadly or crippling than the flu. The flu, BTW, kills 40,000 Americans each year.

        Before the pandemic, unemployment was at a record low. Wall Street was climbing. Interest rates at near all time lows. Trump and the Republicans now how to create a great economy, from a stalled recovery under Obama.

        I’d say the Republicans made the following political mistakes:

        – Trump listened to Dr. Fauci, when Fauci said (early on) you don’t need to wear a mask.
        – The Republicans didn’t pass further stimulus.

        The Democrats made the following political mistake:

        – They opposed Trump’s initial actions to shut down airport travel (the virus spread between countries, via air travel)
        – They reserved unto themselves, the rights they deny everyone else (Pelosi at a beauty parlor), Newsom at a restaurant without closely sitting with strangers without mask. That’s what you get with socialists.

        Both sides made political mistakes, it wasn’t pretty.

        I have been wearing a mask for about 5 years now. The reason is to protect a family member. I have to tell you, masks have been very effective at cold and flu prevention, in my case. There was a study in Japan on mask effectiveness. They found that masks are 80% effective at preventing transmission of flu between family member.

        I tried to get the message out, the very moment that I heard Fauci say masks were unnecessary. My favorite comment location was KQED Forum. But that KQED Forum shutdown comments for political reasons. (They didn’t want Russian trolls like me commenting).

        Americans also have a hard time accepting masks. And we harbor so much baggage as well on this. Just shortly before it was called a pandemic, 2 people of asian ancestry asked me if I was wearing the mask because they were asian (It was a very good hearted exchange both times). I explained to them that I am wearing the mask to protect a family member, and have been for 5 years. I would like to see the stats on flu and colds, and wonder if the masks have made difference there, this year.

        But once we all have had vaccine or covid, we are still stuck with reviving the economy. Democrats are going to tax and spend. I think this will likely lead to inflation and rising interest rates. The higher rates could damage the housing market. We have to spend some in the short term, obviously. But after about a year, we will have to motivate businesses to open up again.

        Restaurants and retail are hard hit. But they are the big employers. So reviving them will take more than just money. It is going to take a cost structure that is affordable. I have yet to see any Democratic idea that helps small business, other than giving away money.

        I think the best thing the Democrats can do is:
        – Do everything to encourage natural repatriation of cash to our economy. If that means tax breaks for investment, then do it.
        – Don’t encourage long term unemployment with huge cash giveaways. That will actually cause more inflation as well, as businesses scramble for workers.
        – Protect American jobs. Trump was great at this. Democrats have a miserable record. Bear in mind, other countries protect their jobs. India and China tariff finished Harleys from the U.S. 300%. Harleys are already expensive, why do China and India do this, the answer is to protect jobs in India and China. We should reciprocate, Trump has been.
        – Use leverage to get better agreements on Trade and on Climate. The Paris climate accords gave the 2 biggest polluters, India and China, a 15 year period where they could continue to increase their pollution, as they saw fit. That was insane. India burns the most coal (which is the highest carbon output fuel). China is the worlds biggest polluting nation. The U.S., without any need for such an idiotic accord, has decreased its carbon output, while increasing economic output. If we want to do something about climate change, the problem lies with India and China, any agreement that fails to address this, is worthless. It is worthless to even enter an agreement, because it will cement-in rapid carbon output by India and China, Obama’s legacy was doomed by the incompetence of the Democrats who negotiated the Paris climate accords.

        So on immigration. The PERM process (the process by which companies get Green Cards), can be repeated an infinite number of times, even if companies were required to actually look for an American (which it is clear they are not, as evidenced by the Facebook case, no one enforced the laws). Most companies do everything they can to NOT find Americans when doing the PERM process for a foreign worker, and the methods they use (see the Facebook case), at avoiding Americans, are very effective. We need a fix the PERM process that requires companies to use all Free advertising they have available to them. And the PERM process should only be repeated 2x, after that the worker must wait 10 years (presumably to master something Americans are not already skilled at, in abundance). The Democrats don’t have a clue on this, they are in paid-off denial. At least some Republicans are aware.

        Democrats want unlimited numbers of H-1b visas. That will only feed more workers to the Offshore Outsourcing companies, and thereby remove jobs even faster from the U.S. economy.

        I wish the Presidential term was only 2 years, that would work out. But it is for 4 years. And based upon history, under Obama, I believe that is going to mean, at least, 3 years of sluggish recovery under Joe Biden, along with zero help in maintaining jobs in the country. A huge giveaway of jobs to other countries in fact, for campaign contributions. A chorus of blame to the Repulicans and zero introspection on the part of the Democrats.

        Sorry to spoil the plot.

  4. @jake leone – you get it right! The Democrat party immigration plan is a disaster for American STEM workers. And the other proposed policies – such as the climate agreements are worse for all of us. The next thing I expect to hear from them is resurrecting the bad TPP concept.

  5. Jake Leone

    Hi Suman Reddy, could you elaborate on the “good”.

    Obviously, like any policy that picks winners and losers in the Market place, H-1b is “good” for some “bad” for other. But how is rolling back salaries “good” for H-1b workers? When there is only a fixed number of visa slots? How is using a lottery system “good” for awarding H-1b visas, when more typically the more skilled workers would have a far better chance with a salary ranked system?

    Tell me who would these rollbacks benefit?

  6. Its good for h1b holders if Biden wins but Its huge loss to Citizens. If restrictions lifted on H-1B makes staffing agencies and big companies start fraud again and also removing per country limit on green cards eligibility which means thousands of visa holders gets green card followed by Citizenship. So US will be flooded with visa and green card holders throwing Citizens out of jobs. You wanted to win with Citizen votes but you wanted to help outsiders to take away their jobs.

  7. Maybe Biden will do something, maybe he won’t. Maybe pigs can fly too. I hope that everyone commenting here realizes that both parties are controlled by the rich and they don’t care about the American worker; they only care about the bottom line and profits. They like the cheaper labor costs of contractors, many of whom are H1B holders. Americans want permanent positions which is a joke as permanent is a relative term these days. We also want great salaries and benefits. And, while the H1B holder wants that too, they don’t complain if they are working in America because they are basically slave labor. Biden has so many challenges that it seems unlikely to me that reversing Trump’s H1B policies will be the top of the list.

  8. “Anybody who can go down 3,000 feet in a mine can sure as hell learn to program as well… Anybody who can throw coal into a furnace can learn how to program, for God’s sake!” – Biden, Derry, NH, Dec 30, 2019

    I thought those jobs were going to Americans, Joe.

  9. John Stanford White

    I agree with the comments about H1B program takes away jobs from American workers, especially the IT workers. Furthermore, the idea that the savings that corporations will realize from the policy of outsourcing will ultimately benefit citizen workers is preposterous. Furthermore, many American corporations are moving their operations to tax havens, like Ireland. Again, the upshot is fewer jobs. So what is the solution? I don’t know. I firmly believe think that one part of the solution is for IT workers to unionize, and pressure businesses and government to adopt more citizen friendly job policies, and stop treating IT workers like flashlight batteries. Another part of the solution might to say, OK, we are becoming a gig economy, so we should provide gig workers with benefits, like medical, unemployment insurance and 401K contributions, funded by taxes on businesses that use gig workers, offshore operations, and yes the big job killers – robots. I just don’t know how that would be administered. A policy of that sort warrants study by serious economists. As far as I know, the only “politician” to even think about this is Andrew Yang.

    I seriously worry about my children, and the unsavory employment situation that most of them must face.

  10. All these discussions seem exaggerated. I mean how many new people graduate every year in IT? I read somewhere it is about 4 million. In contrast only 120 k new H1Bs. So perhaps is it only about people in very specific jobs? There seems to not be enough graduates on those fields. It seems a few people will always complain no matter which way around. To blame the workers is bad. The real problem is the increased number of jobs leaving the country, going to India and other countries. Actually this will only increase if H1B is restricted, since business people will just go there instead of being forced to hire people they don’t want to, for whatever reason.

    • jake_leone

      It is important because a few H-1b workers can document the processes of an entire departments, and then ship the entire department, overseas.

      That’s the reason.

      Our domestic tech originating companies don’t even use half the H-1b visas. Silicon Valley, barely 1/3.

      Offshore Outsourcing companies use more than half (until Trump started rejecting their applications at a 50% rate).

      If you send in a team of 10 documentation engineers, they can take away thousands of jobs each year. And we have seen it happen at a lot of companies. InfoSys, Cognizant they all specialize in exactly this. Just look up what happened at Southern California Edison, Disney, UC Davis… The H-1b workers are not taking jobs of highly specialized people, they are taking millions of ordinary service jobs and relocating them to India.

      We have to ask, why on Earth do we give H-1b visas to Offshore Outsourcing companies? It is insane. And it is insane for companies to whine about needing more H-1b visas, when more than half the H-1b visas are used to remove jobs from the United States (entire departments and all the support staff).

      That’s why it is important. That’s why if Joe Biden gets it wrong, we will have a lingering recession. And I will point this out along the way, as we experience it. And Joe will have to either change and face the music or he is going to called out and will have to explain why he let so many jobs go overseas, with the full assistance of the U.S. Federal Government programs (that are geared to only be of value to Offshore Outsourcing companies).

    • jake_leone

      The reason why business people don’t all move overseas is because of our college system. If we can kick the Offshore Outsourcing companies out of the H-1b program (they don’t need any Federal Assistance, they can use the Free Market, you know Capitalism). Then more H-1b slots will be available to our Domestic Tech originating companies.

      One huge difference between our Domestic tech originating companies and the Offshore Outsourcing companies. Is that our Domestic tech companies actually sponsor people for Green Cards. The Offshore Outsourcing companies are using the H-1b visas (and the B-1 visa) just to create a temporary transient workforce, they don’t sponsor anyone for a Green Card (that would defeat the purpose of an Offshore Outsourcing company).

      You know there is a huge disparity between engineer pay in India and China vs the United States. That disparity should have depleted the tech force in the United States, very quickly. But it didn’t. And the reason is because of our Universities and our infrastructure, our climate and our lifestyle.

      In short, people (be they engineers or blue collar) want to live in the United States.

      One big motivation to seek a college education in the United States, is the hope of getting a Green Card (possible via an H-1b visa). Hey, if we switch from wasting visas on Offshore Outsourcing to making sure that only U.S. tech originating companies get H-1b visas, more people will be sponsored for a Green Card.

      As soon as people understand this, then hey will be more motivated to seek education in the United States.

      Right now, people confuse these good changes the Trump administration made, with other changes (such as the outright ban). Biden can pick and choose and think for himself on each individual Trump action, IF HE CHOOSES TO DO SO. If, on the other hand, he chooses to NOT THINK, NOT PAY ATTENTION TO HISTORY. He will set up the next election, in exactly same condition it was in 2016, with an anemic recovery and too much pandering to foreign governments (that simply want to profit off the United States, while at the same time giving themselves 15 year breaks on having to comply with treaties (the Paris Climate accords)).

      • Robert Miles

        Would it be adequate to require companies using someone on an H1B visa the pay that person a certain percentage MORE than the average for US citizens in that job role? Perhaps a little more than just the higher pay in the US for that job role than in the visa holder’s home country?

  11. ELENA DANIEL

    The return of the corrupted outsourcing and offshore cheap labor trafficking schemes will be catastrophic for the US IT. Those of us who have been around for a while, remember entire departments and companies forcing American staff to train semi-qualified cheap H1 workforce and then laying off 80-90% of American employees and contractors. Companies incurred enormous losses in a long term, the quality standards across IT deteriorated and countless lives of American professionals were ruined. But it is profitable for everyone involved at the top, from cheap labor suppliers companies to corrupted politicians, to the CEOs of American companies selling jobs to offshore.

  12. Jake_Leone

    Read this ARS technica article, Companies do break the law, and discriminate against Americans, when applying for H-1b visas and Green Cards. This article involves a massive case of this at Facebook (for jobs such as Art Director, not even a STEM position being filled by an H-1b worker):
    https://arstechnica.com/tech-policy/2020/12/feds-say-facebook-broke-us-law-offering-permanent-jobs-to-h-1b-workers/

    Big Tech can’t wait for the good old days (under Obama) when every American’s jobs was FOR SALE (at rock-bottom prices).