Biden Administration Strips Trump-Era H-1B ‘Specialty Occupations’ Rule

In the final months of the Trump administration, the Department of Homeland Security (DHS) told the public that it wanted to narrow the definition of the H-1B visa, limiting it to highly specialized workers with advanced degrees.

“The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages,” read the abstract. “In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”

Two months after Trump’s DHS issued that interim final rule, in December 2020, the U.S. District court for the Northern District of California vacated it. Now, the Biden administration has issued a final rule stripping out that interim final rule. “DHS believes that delaying the ministerial act of restoring the regulatory text in the Federal Register is contrary to the public interest because it could lead to confusion, particularly among the regulated public, as to the eligibility requirements for the H-1B classification,” read the accompanying note.

While this seems like a relatively small move—after all, the federal district court already ruled against it—the deletion is yet another sign of how many of the Trump-era rules around the H-1B are being systematically rolled back by the Biden administration. The big question is whether Biden will introduce reforms of his own, or simply reset the H-1B system so it resembles its pre-Trump version. 

Biden’s recent proposals offer some clues. His U.S. Citizenship Act of 2021 would overhaul the nation’s immigration system, and both the Senate and House versions of the bill 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 relevant language from both:

“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.’’ 

If the bill passes with that language intact, the Biden administration could end up echoing Trump-era attempts to ensure the H-1B is used as intended and undermine business-services and consulting firms that try to secure as many of the visas as possible every year. However, much is still unclear, including whether the Biden administration will make fundamental changes to the H-1B lottery. 

32 Responses to “Biden Administration Strips Trump-Era H-1B ‘Specialty Occupations’ Rule”

  1. This is a natural move. The winner candidate implements the policies he promised. The loser candidate’s policies are buried. The winner does not implement the policies of the loser candidate, as some crazy people suggest in this blog.

    On the other hand, It is obvious that these rules need to be easied, IT companies must keep hiring more and more H1Bs to maintain the high levels of productivity they are showing lately. All data is showing that in the big IT companies the productivity is at its highest ever, revenues skyrocketing, prestige of these companies doesn’t get harmed for hiring H1Bs and IT unemployment is lower than ever. It would be stupid not to hire more foreign talent.

    • Andy, what a bunch of drivel. Obviously, your real name is not Andy. Yes, companies need to hire but not low-cost H1B holders. There are plenty of qualified Americans who can do these jobs. As Biden doles out those stimulus checks, he should be thinking of policies that truly ensure that Americans are hired before bringing in H1B holders.

      • Absolutely, I agree. There are a lot of eligible Americans that can fill in these jobs. Andy (its obviously not his actual name)- is just trying to justify this real hard, one way or the other.

        • What’s up with this ridiculous fixation on my name?, you should better pay attention to the hard data and numbers instead of whining for not being able to get a job in the BEST I.T. MARKET IN DECADES. Maybe your lack of insight on real data is keeping you and your pals out of the market.

          • Foreigners support this HIB Visa favorable to them. Of course they are here for money, not for the love of this country.

            We need to get the job first to American Citizen, then to anyone else,

            And certainly, don’t give permanent residencies or citizenship to these money chaser!

          • Jake Leone

            John, exactly right. Citizens face the risk of war, various civil obligations, the huge national debt, and we love our country, we honor and defend both the Flag and the Constitution. And that is a critical difference.

            Transient Foreign Workers are not immigrants, until they accept those same responsibilities as citizens.

            And promoting the General welfare is part of the U.S. Constitution.

            And we can argue that the H-1b visa is not a capitalist solution, it is in fact a case of the government picking the winners and losers in the U.S. market place. It used to be that people didn’t need an employer to gain entry into the United States, I favor that kind of immigration controlled by the worker, so they can maintain their full free market right to leave their employer.

            OPTs huge tax break should be extended to all students (or removed entirely). Government has created a demand for foreign workers by giving creating legal classes of foreign workers that cost less or are tied to an emloyer forever until Green Card day.

            That kind of graft is courtesy of career politicians who basically sell favors for campaign contributions.

    • Chuck Tudor

      Well Andy, tell your fairy tale to the thousands of unemployed and underemployed US citizen tech workers that are over 50.
      The Trump policies were pro-American tech worker, so what does that make the Biden policies?

  2. Jake Leone

    The switch to a salary based allocation isn’t a Trump idea. It was discussed a long time ago by many in the concerned community. Further, it was recently re-iterated in a letter from Dick Durbin (D) and Chuck Grassely (R), that Biden should keep the change to a salary based allocation.

    Non-profits can be protected by such a change, by simply reserving a percentage of the H-1b visas that percentage being the number of non-profit applications divided by total applications. And distributing that percentage to the non-profits, using the idiotic lottery method (so nothing changes for Non-profits).

    In fact non-profits will see their percentage of h-1b visas increase, as Offshore Outsourcing companies would submit far fewer (maybe zero) H-1b applications, knowing they have no chance of winning half the h-1b visas, now that salary is the distribution factor. With fewer applications, then non-profits would get a larger percentage of the H-1b visas.

    Silicon Valley companies, doing direct hires of H-1b visas, would also see their chances of winning an H-1b visa, going from the current 1-in-4 chance, to a far better 1-in-2 chance, and then as the backlog clears, nearly a 100% chance of obtaining an H-1b visa.

    The only groups in favor of the foolish (sick and backward) lottery system are the Immigration Lawyer associations. Because their H-1b business would immediately be cut in half, and then fall to one quarter of the current business (as the gamblers leave the shutdown casio). But the total number of H-1b visas issued would remain the same, and the system would become a reliable way to obtain vetted STEM/IT employees.

    Instead of what it is currently. Most, more than half, of the H-1b visas go to Offshore Outsourcing companies. Also, (as we see recently in Texas) many low paying staff companies benching poorly paid h-1b workers, and until caught, making millions off of inexperienced low skilled fraudulent tech workers.

    For Biden to delay this rule change, says only one thing about the Biden administration. It is all about campaign contributions and political support. There is no other thinking that goes on in that administration. That is a shame. We endured the slowest recovery in U.S. history under Barack Obama. While at the same time, Obama let the Offshore Outsourcing companies massively oversubscribe out H-1b visa system. And in doing so, remove millions of jobs, whole departments. At times, Offshore Outsourcing companies had U.S. workforces in the ten of thousands, that were 90% from India.

    Yeah, you know this kind of money grubbing corruption is exactly what you see in the move “White Tiger”. Which by the way glorifies bigotry and racial hatred. White Tiger, is like the infamous “Birth of a Nation”, that’s all it is, it is a sick and shameful movie. We cannot allow that kind of corruption to continue in the United States, we need to call it out at every opportunity.

    • artik

      “For Biden to delay this rule change, says only one thing about the Biden administration. It is all about campaign contributions and political support.”
      If that is the logic of this administration, it is exactly the same logic the Trump utilized, awaited until
      the elections to start pushing all the inconclusive changes, expecting to win the votes from the affected
      voters. So; Biden wants to fail in to the same trap? The voters evaluate the logic of the tricky politicians; that’s why many lost their positions.
      Yes, “We cannot allow that kind of corruption to continue in the United States, we need to call it out at every opportunity.”

      • Jake_Leone

        Trump lost because of the confused response to the Covid 19 pandemic. One the one hand you had Dr. Fauci, on tape, saying Americans didn’t need to wear masks. When what we know about masks is that they are 80% effect (Japanese study) at preventing transmission of the flu. I can tell you, for reasons not related to the Pandemic, I have been wearing a mask for 5 years now and have not suffered a cold (I vaccinate against the flu).

        Trump’s foolishness in promoting quack therapies was dumb.

        Finally, Trump is on tape saying he didn’t want to play up the Pandemic dangers, early on. That was a big mistake.

        But the reality is, most of the work to fight Covid was done last year. Right now we are just implementing plans made under the Trump administration.

        But in the H-1b area, Trump was actually hampering Offshore Outsourcing companies for the entire term, from the beginning.

        Also, Trump’s team put in a dozens of needed rule changes that helped prevent the H-1b visa from being used to replace Americans.

        The rule change to a salary based allocation is needed, and Biden should have kept it. While changing it, slightly, so that non-profits will not be affected (that can be done easily). Biden has now delayed this needed rule change for years, if not forever.

        Also, the rule change to a higher salary base is also now delayed for years, if not forever.

        That’s Biden, he will hold these 2 items out as a way to garner campaign contributions. And many business groups hate these last 2 changes, so they will donate hundreds of millions to the Democrats to prevent these rules from ever seeing the light of day.

        Hey, see the movie “White Tiger”, it will teach you all you need to know about how money, not common sense or morality, determines what Federal policies are.

      • jake_leone

        Biden is in a campaign finance trap.

        They (Biden and the Democrats) don’t want to think about, and are in denial, that the H-1b visa created the 200 billion dollar per year Outsourcing industry in India. And they don’t want to admit that this caused a record slow recovery, that cost Hillary Clinton the election (who is on film praising the Outsourcing companies during the Great Recession).

        And it will happen again. The best way to get to full employment is to just get kick the Offshore Outsourcing companies out of the H-1b Federal Government program, by any means possible, including raising salary requirement and/or changing from an idiotic lottery to a salary based allocation of H-1b visas.

        If Biden did that, he (or any Democratic replacement) wouldn’t have to worry about raising hundreds of billions in campaign finance, because the economy would be in his favor come 2024.

        But they don’t see it. They think the h-1b program creates new citizens, but with the Offshore Outsourcing companies taking up more than half the H-1b visas, and destroying ten times more jobs in the United States, the H-1b program is basically an anti-employment, anti-immigrant program. Because Offshore Outsourcing companies don’t sponsor anyone for a Green Card or citizenship and they move entire departments and all supporting jobs to India.

  3. Usually any country make policies that benefits their own citizens first.
    Everyone knows the loopholes of h1b and how staffing businesses taking advantage of it. If any country prefers foreign nationals over their own citizens or encourages the misuses of work visa, it is unfortunate.

  4. While there is nothing really wrong with Biden removing the rule, where is its replacement? Just back to business as usual, everything to benefit the corporation at the expense of the American taxpayer and job holder. When every IT American worker has a good-paying job and companies still need more talent, then bring in the H1B but not before.

    • I agree with everyone, but Andy. I have lived this. Worked in the Silly-con Valley for decades. In later decades companies used any excuse to layoff American workers to hire either overseas or H1-B workers. Why? To raise their profits, lessen their costs. The company I worked for brought over IT people to setup a new building, from India and paid them India wages while they were in the US. They were caught and had to pay a huge fine. Well, why did they do this when we were in the Silly-con Valley with tons of IT people? If you can’t figure that out, you need to pay way more attention to what Biden and his cronies are doing.

      • Yes. The Disney story is instructive. Disney replaced their whole IT staff with immigrants and. In order to get severance, the old staff had to train the new staff. Illegal, immoral, bad news for American workers.

        • Jake_Leone

          Should we be calling them “immigrants”, when in fact they are just here to learn a job and take it back to another country? It is likely Disney used an Offshore Outsourcing company. Such a company will at first bring in a lot of documentation people (they could be engineers), and then move the entire department offshore.

          No one immigrates to the United States from an Offshore Outsourcing companies. Giving visas to Offshore Outsourcing companies is in fact, Anti-immigrant.

          I think we should call them what they are. Transient Foreign Workers. They are not immigrants until the day they start the citizenship process. Until the day that they start the citizenship process, they have no loyalty to the United States and they have no responsibility to the United States. They are here for the cash only. That makes them just guests in the country. And every country reserves the right to limit the stays of guests, that’s not racism or bigotry, that’s just the facts.

          Americans pay for their right to live in the United States with our loyalty to the Constitution, and that document includes the requirement to raise a defensive force. So in essence, any American is duty-bound to fight (or at least serve in some non-combat role) for the country if asked.

  5. Rob C

    H1B has absolutely decimated wage growth and job opportunities in Engineering and IT in Americans for decades. Just another example of Lefty Democrats favoring foreign nationals over American Citizens when it helps secure their power base with large donations from Tech firms.

    The same thing is going on with immigration, they are trying to get more eventual Democrat voters by an open border policy. Again favoring Foreign Nationals over American Citizens when it will increase their power base.

    The solution is easy, CLOSE THE BORDERS FOR 10 YEARS, ELIMINATE FOREIGN WORKER VISAS, TRAIN DISENFRANCHISED CITIZENS TO FILL THE JOBS. IT IS OUR JOB TO STAND UP AND FIGHT WHEN OUR GOVERNMENT CHOOSES TO ABUSE US. IT IS TIME TO STAND UP AND FIGHT. REFUSE TO ACCEPT ANYTHING LESS !!!!!

    • Jason

      It’s hard to train North American workers in how to code. Because learning how to code takes dedication, patience and hard work. Most North Americans expect everything handed to them. I know this as I am trying to teach my buddies how to code and I gave them a simple task offered help if they got stuck yet none of them have done it. Yet they all want to make over 100k.

      • Milly

        Jason – do you have any knowledge of life outside your mom’s basement? There are many American STEM grads. I’ve seen them, I’ve been to graduation ceremonies. Stop with your insults!

      • jake leone

        Look, such sick and ignorant stereotyping of any group of people, is Racist.

        I am a North American, I have always enjoyed coding. I know hundreds of North Americans who love to code. I would say, Americans love to write code at the same rates as any other country.

        And I think your racist trash talk can go back the ignorant rural back yard it came from. You have no clue how much North Americans love to code. But you have to ask, is that 60k/yr programming job going to get you into a house into any house Silicon Valley, no way.

        The question is, can you make your best living writing code? And that isn’t always the case. A general building contractor, that’s a hard job, lots of sweat, pain, and injury risk. But some guys doing general building contracting make 300k or more a year. Flipping houses can pay you millions each year.

        In the U.S. many jobs pay six figures and so I would have to ask, coding is great, but if you can trade a coding job (with no pension, maybe no health insurance or other benefits) for a government job (say in San Mateo County) making 100k/yr. I would say, take the government job, if you are interested in retiring happy.

        I know this because my eldest brother worked for San Mateo county for 30 years. Retired with 90% of his pay. Bought 3 houses. Was recently hospitalized in a long term care facility (we believe he will eventually recover), and San Mateo county not only pays for 100% of the cost of that 24×7 care (forever if needed), they still pay his pension. And he collects Social security.

        Do you know what School administrators make in California, with a pension, with full benefits, often more than 150k/yr. An old friend of mine, is making 180k year as a school administrator in Central California. And his pension is going to be 90% of his highest salary. Thats a 401k, a million dollar home, Social Security Benefits, massive health benefits forever (the kind of health benefits that will pay 100% of your long term old folks home, forever).

        No, literally what is missing from the equation is the fact that Apple, Facebook, Google, Microsoft make a profit of 250-635,000$/yr in profit per employee. They pay no long term pension. Once you are out of the company, your health benefits are gone, and you get to go pay Kaiser 10k/yr for basic private health insurance (after 2 months in long term care, you pay 100% of the cost). And these same companies are lobbying for massive increases in H-1b visas, without a care about who gets them (Offshore Outsourcing companies take half of them).

        And engineers are the engines of these massive profits, and engineers can’t ask for a fair share of the profit because companies will just hire someone from another country, will sit them down at your desk and who comes out of abject poverty. And who has no intention of asking for enough money to buy a local house, and is content to take a small sum and remit 95% of it back to their home country.

        That’s the reality. And frankly, Big Tech has had it too good at the expense of society for too long. Time to start paying back, or just leave and make room for new companies, maybe the kind that will encourage worker unionization. Instead looking for scabs to break up collective bargaining.

      • Rob C

        “Jason” you are completely wrong. American Engineers and Computer people created the High Tech world we know today and are the best in the world, period. Asian H1Bs are here because they are cheap and will do anything for a green card. The days of H1B and foreign workers in Tech is coming to an end.

        • jake_leone

          Yes, we should have vetted them for racist ideas such as “Massive (tens of millions) Group X, in Location Y, cannot learn to program”.

          Proving once again, that social studies is critical. You can’t get that in a learn to program in 24 hours book followed by months of being trained by the American worker you are replacing.

          Looks like humility and respect are never taught in overseas STEM, I guess when you have a society where you identify on some national or idiotic skin trait, you just pick up racist bigotry like water from the tap. Indeed, just as Martin Luther King pointed out in his speech in Selma about rich White People. A similar problem must occur among rich people in India (Offshore Outsourcing companies) teach poor people (the workers they bring on H-1b visas) they are “superior” to North Americans. Along with a whole bunch of other notions that are frankly “F*As*Ci*st”. And then they get on this forum, and proud as peacock they strut their racist notions, as if it were the common truth. When in fact it leads to massive social problems in the United States as well as points out the real source of the bigotry in U.S. Tech.

    • Thank you for showing that in the end this “H1B issue” is just about racism!.

      Closing the borders in not the solution. you should remember the role of the US in dismantling many governments (through military and CIA) in the whole world especially in Central and South America during the 70s/80s/90s, now their citizens come here because their countries are a mess, guess that interfering in other countries is not for free??

          • jake leone

            If it is racism, then the facts speak plainly, India, China, Mexico, and Japan are the most racist countries on Earth.

            You can’t immigrate to Japan, unless you are of Japanese decent.

            You can’t own property in any of these countries, unless you a citizen of those nations.

            You can’t work in India, unless you have a permit and are making 12x the average national salary. If that were true in the U.S., and H-1b worker would have to make 700k or more per year.

            And after watching the movie “White Tiger”, we should be vetting all immigrants for latent racism. Just bringing in people because they are skilled, yet have racist bigoted ideas such as “You can’t teach North Americans to code”, becomes a huge problem here in the United States, for companies, minority STEM/IT people, they all suffer because no takes the social readiness of immigrants into consideration.

            All the business people take into consideration is can I make a profit, and is it worth my financial risk to do so? That could be 20k/yr when paying a worker 60k/yr and billing the customer 80k a year. It really doesn’t matter what the social cost is (high rent, demands on roads and mass-transit), because all the whining gets rolled up into the Chamber of Commerce slick polished business presentation of money and lies to our political marketplace.

          • jake leone June 4, 2021
            The worst argument about racism is to say that other countries are also racist. This guy is advocating for a total border closure to stop foreign workers, even if they are getting great wages and helping this market to become the best IT market in decades in terms of profits, productivity and employment.

            Also, anyone who defends racist people is also a racist.

          • Jake_Leone

            No it is racist to discriminate on who comes in based upon nationality. It isn’t racist to set a quota for overall immigration. Get that straight.

            The U.S. does not have a racist border policy, it has a limit on the number of people who can come in.

            As for Green Cards, some countries have special arrangements with the U.S. (I don’t agree with) by treaty. But the rest of the Green Cards are evenly distributed across all nations, that isn’t racist, that’s fair and provide maximum diversity.

            If the U.S tomorrow, decided to stop all immigration, it wouldn’t be racist if it applied to all countries. It also wouldn’t be racist if it applied to certain countries for reasons of national security or health safety either.

            Further it isn’t racist to reserve entry, based upon actual need for workers. Not upon unproven skill levels, we simply don’t rate every worker that comes in with a skills test, so we simply do not really know if the workers we are bringing in under the H-1b program are actually better skilled than the Americans they are replacing. There is strong evidence that they are not better skilled.

            Because half the H-1b visas go to Offshore Outsourcing companies, that bring in trainees, that are trained by better experienced American workers they are replacing.

            Because in DOJ vs Facebook, 2600+ times, Facebook admits that it protected foreign workers, here on an H-1b visa, from having to compete with better qualified local STEM/IT workers for their job. Simply because the government, artificially created a class of foreign worker that has less rights than local Americans (Green Card holders and citizens) STEM/IT workers.

            Creating that special class, with fewer rights, that isn’t racist, it is Anti-Capitalist.

          • Andy (maybe Reddy), Prioritizing citizens over non citizens is racist? How about your Modiji closing Indian citizenship access to neighboring countries Muslims (yes, Muslims in particular)

            So, I mean to say that its their country and their rules. If we have open borders, then entire world would want migrate to US. So, we should limit immigration to allow only the brightest people from across the world and not coolies from TCS, Infosys and likes.

  6. Actually, the H1B changes were proposed by a 2020 Democratic primary challenger as well: Bernie Sanders. Between this and student loans, Biden has declared war on those who got student loans and now are hard-pressed to repay them due to a rigged labor market where cheaper labor can be brought in from other countries, without effective protections (because if they complain that they’re being worked 60 hours a week with no OT, the employer simply cancels their visa.)