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.
