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.
