Biden Immigration Bill Leaves Door Open to H-1B Lottery Shift

President Biden’s U.S. Citizenship Act of 2021 would overhaul the nation’s immigration system, offering a pathway to citizenship for undocumented immigrants who complete a number of milestones. However, it may also retain one crucial H-1B reform proposed during the Trump administration. 

Both the Senate and House bills propose prioritizing visas based on wages, while giving broad latitude to the Secretaries of Homeland Security and Labor to determine what’s appropriate. Here’s the actual language, found in Section 3407 of both bills:  

“In determining the order in which visas shall be made available to nonimmigrants described in section 101(a)(15)(H)(i)(b), and to any other category of non-immigrants deemed appropriate by the Secretary of Homeland Security, the Secretary of Homeland Security, in consultation with the Secretary of Labor, may issue regulations to establish procedures for prioritizing such visas based on the wages offered by employers.’’ 

The Trump-era version of this rule would have effectively disposed of the current H-1B lottery, which is based on random selection, in favor of choosing high-wage applicants. The Trump administration positioned the maneuver as a way to ensure the H-1B is used as intended: “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.”

But at the beginning of January, U.S. Citizenship and Immigration Services (USCIS) announced that it would delay the implementation of that rule, ostensibly because it needed more time to actually implement elements of it. “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,” read USCIS’s official statement on the matter.

Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School, told Bloomberg Law that the proposal in the U.S. Citizenship Act of 2021 is “similar” to the Trump-era rule, but that the Departments of Homeland Security and Labor also had the latitude to not implement it. 

For 2021, the H-1B lottery is proceeding as planned. How it looks next year, though, could hinge on whether Biden’s sweeping immigration bill becomes law, and whether his administration wants to implement a wage-based system.

8 Responses to “Biden Immigration Bill Leaves Door Open to H-1B Lottery Shift”

  1. Jake_Leone

    While to anyone (outside of politics) looking at the H-1b program, changing from a random chance lottery to a selection that is based upon salary, make complete sense, it is in fact a no-brainer.

    But for Biden it works like EBAY. First he puts the amendments into the bill, then he sees if anyone will bid on them, and also meets the hidden “Reserve” price. If no one meets it, then the amendment, maybe the whole bill/auction gets cancelled.

    That way we can ensure that the maximum amount of dollars get stuffed in the campaign coffers.

    There is no reason, other than spite, for removing this change, made by Trump, to the H-1b program. Right now, there is a huge incentive to pay-up, because the Offshore Outsourcing companies love the Random Chance lottery, which they have used to successfully get more than half the H-1b visas.

    To career politicians, the H-1b program is the program that keeps on giving and giving.

  2. Jake_Leone

    You can’t trust statements from executives in the tech industry. There is no penalty for lying or exaggeration when speaking to the public.

    When those same executives talk with Federal investigators, we get an entirely different set of data from them. Keep in mind, that when you lie, deceive, or give any kind of false information to a Federal investigator, you will face a felony obstruction of justice charge. The same charge that landed Martha Stewart (a billionaire) in jail.

    You need to read the DOJ indictment of Facebook in the case involving 2600+ cases of fraud in the Green Card Perm process, over just a 1.5 year period.

    In that indictment (which is available online from DOJ), Facebook admits it finds 30x more local STEM/IT engineers than it can hire. Facebook admits, that the jobs that these 30+/(job ad) local STEM/IT people are qualified for, are actually much more difficult than the jobs being held by foreign workers undergoing the Green Card PERM process.

    Facebook never forwards the resumes of the 29+/(per single job ad), better qualified local STEM/IT workers, to the hiring managers involved in the PERM process.

    Facebook hid the jobs ads for the PERM process, in 2 print editions of the Sunday SF Chronicle. Facebook said “no” to the Chronicle’s Free offer to put these jobs ads on the Chronicle website. Facebook just had to say “yes” instead of “no” for this free advertising. And Facebook didn’t post the PERM jobs ads on their own website.

    Facebook hid these PERM jobs ads (which are used as evidence that there are no locally qualified workers that could assume the foreign worker’s jobs) from the public. In order to protect foreign workers from having to compete with better qualified local STEM/IT workers.

    Facebook then lied on Federal forms, saying it made a good faith effort to find qualified local workers, when it fact Facebook made a “Bad” faith effort. And that lie is the basis of the Federal lawsuit.

    Keep in mind that the DOJ routinely settles such cases of fraud for 100,000$ per violation. Facebook violated the law 2600+ times, over just a 1.5 year period.

    We have to ask ourselves why would a company protect foreign workers from having to compete with better qualified local STEM/IT workers. Well the reason (the motive to commit these crimes) is also in the DOJ indictment.

    A worker waiting in the Green Card cue for a Green Card (after having gone through the PERM process), cannot leave the company that got them into the Green Card cue, until the Green Card is issued.

    For workers from India, the Green Card wait is stretching into decades. So Facebook is highly motivated to PREFER foreign workers, because of this Green Card wait. Not because the foreign workers are more skilled, not because Facebook cannot find local candidates (which by Facebook’s own admission to Federal investigators, Facebook routinely finds 30x more STEM/IT workers than it can hire).

    Facebook protects foreign workers from local competition, and commits Federal Immigration fraud, because foreign workers do not have the same rights as Americans. And if that doesn’t disgust you, what will?

      • jake_leone

        Anyone who was actually paying attention to what Biden was saying, knew that Biden intended to undo every change (good or bad) Trump made to immigration.

        Biden is doing this for emotional, not logical, reasons.

        Biden rolled back the H-1b ban sometime ago, apparently it had a high priority for him. And Big-Tech wants more H-1b workers not because they are better, but because they can be chained to their job, forever, until the Green Card arrives. That doesn’t help anyone, anyone who is for that is backward.

        Leaving the change from an idiotic lottery to allocating H-1b visas based upon salary makes complete sense. Unless you are Biden, who wants to use this change as something he can sell, for campaign contributions, whoever pays the most gets to choose.

        The only joke here is complete idiocy of using a lottery to choose who gets the H-1b visa. Biden could have left that Trump change, but didn’t, purely for selfish and idiotic reasons. That’s who you voted for America, now reap the whirlwind.

        If you are cheering at returning to that kind of idiocy, then I would say you are also an idiot.

        • The real idiot here would be someone who thinks that despite the election won by Biden, he should not deliver his own agenda but the loser’s Agenda.

          But I won’t treat you like an idiot, that would be very low.

          • jake_leone

            No actually, what we would hope is that the election winner can at least think. And not be blinded or have a zero IQ (due to the emotion of spite) about how to administer a program under their control.

            It doesn’t take any thinking at all to realize that an allocation of H-1b visas based upon salary is light years ahead of continuing with an idiotic lottery.

            The only possible way it would make sense to keep the idiotic H-1b lottery, is if you are using it as a bargaining chip for campaign contributions.

  3. Nothing surprising here, it’s America last for the liberals, always has been always will be. I have worked with 100’s of H1B in technology. 90% can’t do the job they were hired to do, they may eventually learn but I have seen many that two years later still no clue. One thing they are good at very often is stealing others work and presenting it as their own. 10% success is not a very productive recruiting tool, as someone else already said it’s all about control H1B can’t move around unless the new employer will sponsor them so they are tied to the company that sponsors them indefinitely. Just one of many rules and regulations that put US Citizens at a hard to overcome disadvantage in their own country, that includes black, white, Hispanic, Asian Americans, even minority US citizens have a very difficult time overcoming this ridiculous program, any young person that is a US citizen thinking about going into technology as a career think again if you are smart enough to do this type of job then you can do many other things, Doctor, Lawyer, Dentist, for example and won’t be hamstrung in your career dealing with the asinine H1B program.