In one of the first signs that the Biden administration could roll back most (if not all) of the Trump administration’s H-1B legislation, U.S. Citizenship and Immigration Services (USCIS) announced that it would delay the implementation of a recent rule governing the H-1B lottery.
That Trump-era rule effectively disposed of the H-1B lottery, based on random selection, in favor of a system that prioritized high-wage applicants. By delaying the rule’s implementation, the Biden administration is signaling that this year’s H-1B lottery will proceed as planned this year.
“To give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021,” read USCIS’s official statement on the matter. “The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”
When it originally proposed the rule in November 2020, the Trump administration framed the lottery’s elimination as a way to ensure the H-1B is used as intended, to provide companies with highly specialized talent from overseas that was otherwise unavailable domestically: “If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.”
Nor was that the first time that the Trump administration tried to tweak the H-1B lottery. Back in 2018, for instance, the Department of Homeland Security proposed a new system that would favor those with advanced degrees. Under that proposal, H-1B applicants with master’s degrees (or higher) would be processed through a 20,000-visa “pool,” with the remaining petitions directed into a 65,000-visa “general” pool. That was a reversal of the existing system, which placed all applicants in the “general” pool before sending remaining applicants with advanced degrees into the “master’s cap” pool.
These attempts to adjust the lottery system were part of the Trump administration’s broader efforts to fundamentally change—if not eliminate—the H-1B system altogether. Many of these efforts had a noticeable effect, with an elevated denial rate for H-1B petitions over the past four years. The big question is whether the Biden administration will roll back all of the Trump administration’s policies, or leave at least some in place while it tackles other issues.