In one of his first actions as President, Joe Biden is pushing for legislation that will give work authorization to the dependents of H-1B visa workers, among other provisions.
The U.S. Citizenship Act of 2021 aims to reform the entire immigration system, including an “earned roadmap to citizenship for undocumented individuals.” It’s the part about work-based visas, however, that could have the biggest direct impact on the tech industry. According to the fact sheet for the legislation:
“This bill clears employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates per-country visa caps. The bill makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States; improves access to green cards for workers in lower-wage sectors; and eliminates other unnecessary hurdles for employment-based green cards. The bill provides dependents of H-1B visa holders work authorization, and children are prevented from ‘aging out’ of the system. The bill also creates a pilot program to stimulate regional economic development, gives DHS the authority to adjust green cards based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”
There’s quite a bit to unpack there, but it’s worth noting that the legislation (if passed) could settle the long-running fight over the H-4 EAD, which, as noted earlier, allows spouses (but not other dependents) of H-1B workers to find jobs of their own. The Trump administration spent years trying to kill the H-4 EAD, leading to some brutal court fights.
The other interesting part is the White House’s claim that the legislation will incentivize higher wages for “non-immigrant, high-skilled visas” in a way that prevents “unfair competition” with U.S. citizens. For years, critics of the H-1B visa have claimed that the system allows companies to hire immigrant workers for much cheaper than their U.S. counterparts. Echoing those criticisms, the Trump administration initiated policies that led to a spike in the denial rate for H-1B visas, followed by a DOL “Final Rule” that set mandatory wages for H-1B workers at a much higher level.
The goal of the Final Rule, the press release added, is to “improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed U.S. workers.” That sort of increase could have a particularly huge impact on business-services and consulting firms that apply for lots of H-1B workers, who are then subcontracted to other companies (including some of tech’s largest giants). Bigger tech companies would also need to reconsider spending lots of resources on H-1B talent.
Is there a scenario where the Biden administration maintains some semblance of the higher wages outlined in the Final Rule, while also reinstituting some immigration programs (such as H-4 EAD) deleted by the Trump administration? Like other bills, the U.S. Citizenship Act of 2021 has a long way to go before it can become a law, but the initial read-out hints that the Biden administration is trying to appeal to work immigration critics and advocates alike.