Biden’s Justice Department Argues to Keep H-1B Higher Wage Rule

Presidents have a way of rolling back as many of their predecessors’ actions as possible. However, the Biden administration is currently defending an H-1B regulation originally pushed during Trump’s tenure—and if that regulation sticks around, it could have a huge impact on the visa system.

In January 2021, Trump’s Department of Homeland Security (DHS) issued a final rule that allows for the ranking and selection of H-1B registrations based on wage levels. The rule’s implementation, originally slated for March, was pushed to December 31, 2021. Then came the legal pushback, with a lawsuit alleging that prioritization based on wages was “inconsistent with the text of the Immigration and Nationality Act (INA).”

Now, in a new legal filing in U.S. District Court (Northern District of California), the U.S. Department of Justice is arguing that the final rule is valid (hat tip to Forbes for the link). “Although the INA prescribes that H-1B visas be issued ‘in the order in which petitions are filed,’ 8 U.S.C. 1184(g)(3), the INA is silent with respect to how to order such simultaneous submissions,” reads the cross motion. “If a ‘statute is silent or ambiguous with respect to the specific issue,’ the Court should defer to the agency’s interpretation so long as it is ‘based on a permissible construction of the statute.’”

The Justice Department added: “In deciding how to order simultaneous or nearly simultaneous submissions, DHS turned to an important purpose of the H-1B visa program and reasonably determined that a wage-level-based selection process will implement that purpose of the statute and that nothing in the statute requires random selection.”

This back-and-forth over the final rule isn’t the only indication that the Biden administration is potentially amenable to the idea of issuing H-1B visas based on wages. Biden’s U.S. Citizenship Act of 2021 would prioritize visas based on wages, and give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. However, it’s unclear whether that legislation will pass in its proposed form—things have a funny way of changing as they proceed through Congress.

What’s certain is that prioritizing H-1Bs according to higher wages would fundamentally tweak the current visa system. While it wouldn’t necessarily affect those companies using the H-1B as it was originally intended (i.e., to pull in highly specialized (and presumably expensive) talent otherwise unavailable within the U.S.), it would have a seismic impact on the consulting and business-services firms that apply for thousands of H-1Bs for workers who aren’t necessarily as specialized. It would also affect use of the H-1B as a tool for hiring new graduates, whose starting salaries are often lower than the average for their specialization. 

19 Responses to “Biden’s Justice Department Argues to Keep H-1B Higher Wage Rule”

  1. Deepak

    This is an excellent rule for people hired from outside US. Those who have done their education I.e. high school and higher studies within US should be exempted from this new wage rule

    • No. Absolutely NOT. There is NO WAY a high school or university admissions office should be incorporated as a way to evade rules of US Immigration policy. That suggestion would set up a private entity as superceding immigration authority and is insane. The ways this could be abused are outrageous and could have the effect of completely blocking higher education of lawful US students by allocating all seats to higher paying (not to forget bribing) foreign students.

    • That is a bad idea. We cannot allow a high school or university admissions office to take the place of US immigrations policy. This is inviting fraud and abuse. If this was made policy it could easily crowd out legitimate US citizens and permanent residents from access to higher education. How many people would try to skip labor and immigration rules by trying this? Just no.

  2. Jake_Leone

    Stuart Anderson is against both the change from a brain-dead lottery for H-1b visas, or for higher salaries for H-1b applicants.

    Both of these changes would greatly help OPT students, who have been waiting for years to ** Win ** by chance an H-1b visa. And would clear up the backlog of H-1b visas, and in doing so help Silicon Valley companies, because their odds of winning an H-1b visa would go from 1-in-4 to 1-in-2 (1st year) then 1-in-1 chance of getting an H-1b visa.

    And the reason is simply Offshore Outsourcing companies are using lottery for H-1b visas as a way to game the H-1b program. Offshore Outsourcing companies are the ones that are paying lowest salaries for H-1b workers. With a change from the brain-dead lottery to a salary based allocation, Offshore Outsourcing companies simply wouldn’t win any of the H-1b visas. For a few years at least because the reality is, our tech companies only account for half the H-1b allotment.

    But Stuart Anderson, who opposes the OPT worker’s lawsuit, who opposes the change from a brain-dead lottery, who opposes raising h-1b salaries. Is allowed to testify before Congress. Even though he has a clear monetary reason for opposing these necessary, moral and good changes.

    The reason is simple, H-1b visa applications would be greatly reduced when Offshore Outsourcing companies realize they can’t use the H-1b visa to cut American workers out of the U.S. workforce. As they have done for decades (with ultralow H-1b salaries), as a prelude to moving millions of jobs to India.

    The DOJ vs Facebook indictment on 2600+ counts of discrimination against workers on the basis of nationality. Proves that Big-Tech companies are actually finding 30 or more fully qualified STEM/IT workers per job ad, than they can hire.

    Guys like Stuart Anderson represent business interests, in this case the immigration lawyer business, a business that will see their redundant H-1b application business shrink by 75% in the first year these rules are enacted. The number of H-1b visas issued won’t change, just the waste and added business expense, which is being collected by immigration lawyers.

    Stuart Anderson is a dishonest broker and source who lied massively during that Congressional hearing, and I have to wonder who is protecting this guy? Barry Bonds was harassed for decades over his testimony, but guys like Stuart Anderson can lie all the time about this issue, to Congress-under oath, never receive an FBI summons.

    Furthermore if you Google H-1b, Stuart Anderson’s paid off pieces are top of the news. Yet he does nothing but lie about the issue. Such false information and paid for commentary on major magazines shouldn’t be appear top of the new. Possible a cash bribe is involved, Stuart Anderson’s positions are counter-fiduciary to Google’s own interests.

    But we should consider Eric Schmidt. Eric Schmidt was actually being considered for job in the Biden administration. Eric Schmidt the weasel that fired a successful recruiter at Google that successfully hired an Apple engineer. The Eric Schmidt that gleefully fired the recruiter and told the manager to make an example of her, so other recruiters would know they need to continue breaking the law, on Eric Schmidt’s behalf. The Eric Schmidt that later wrote an Email asking the other illegal conspirators to go verbal only, in order to avoid a criminally prosecutable paper trail. Yes, that same Eric Schmidt, so dumb, because he had already incriminated himself quite grotesquely in the previous Emails. The same Eric Schmidt that tried to buy citizenship in Cypress. Yes, that Eric Schmidt was actually being considered for a job in the Biden administration, until everyone else (in the U.S. it seemed) pointed out these serious criminal personality flaws in Eric Schmidt. But hey that 100 million dollars given to the Biden campaign from Silicon Valley, it buy a lot of indulgences.

    Which points out that money, not honesty or decency, can buy people massive political influence. And this guy Stuart Anderson is just such an individual.

    But if we really want to make the H-1b a good program for America, we just shouldn’t listen to guys like Stuart Anderson, who care only about how much money immigration lawyers can make off the system. And his columns are filled with lies, because changing from a brain-dead lottery to a salary based allocation would help both Silicon Valley companies and the people waiting forever on OPT for an H-1b visa. It would, for the first time, have some way of making sure that people with actual skills (not beginner trainees from an Offshore Outsourcing company) are coming in through the H-1b visa. And so, the theory goes, higher skill-more experienced H-1b workers would create innovation which might lead to more U.S. jobs or at least exponentially higher productivity.

    Yet this guy Stuart Anderson opposes these changes, and that’s who our politicians invite to a Congressional hearing? And further, it is so easy for us to shoot down every lie that Stuart Anderson says, and in doing so convince more people that the H-1b program needs reform. And in doing so, make it more likely (when the avalanche hits) that Americans will completely reject the H-1b program. If you want that, keep taking the bribes dishonest politicians.

    • Stanley

      I was looking for life on Dice and your comment pretty much captures my feelings on this issue. I would have used the word corrupt at least once but this is fine the way it is. Thanks.

    • Mai Tindo

      This would fuel offshore jobs. All firms will move their technology services out of USA. They must educate Americans and allow them to compete within their own economy. They are the preferred hire anyway, there just isn’t enough of them who can apply. They must fix education.

      • Jake Leone

        The DOJ filed an indictment, after the election, which found (by Facebook’s own direct admission to investigators) that Facebook finds 30x more fully qualified STEM/IT people than it can hire. Let me make this clear, Facebook told Federal investigators that for every openly advertised job ad, they receive hundreds of resumes. Of those hundreds, Facebook typically finds that 30 or more are fully qualified for the job. And, Facebook would hire those local STEM/IT candidates, but Facebook simply doesn’t have enough jobs that Americans are “allowed” to apply for.

        The indictment contains 2600+ counts of national origin discrimination, committed by Facebook, over just a 1.5 year period.

        The evidence was gathered directly from Facebook, and provided by Facebook’s own employees. Any untruthful statement, by these Facebook employees, could lead to a Federal obstruction of Justice Charge. The same charge that sent Martha Stewart, a billionaire, to jail.

        If you have any evidence that contradicts these statements and information provided by Facebook’s own employees, you should bring that to the attention of the U.S. DOJ. The indictment is online, at the U.S. DOJ, you can read what I am talking about right there.

        No one has brought any counter evidence to court yet. Facebook’s only challenge to the lawsuit was on the basis of jurisdiction, that was denied. And now the case can go to trial.

        Bear in mind, that such cases typically result in a fine of 100k$ per violation. This indictment has 2600+ such cases, and could have a face value of 260 million dollars.

    • Ben Kimball

      You know what, Stuart? I like you
      You’re not like the other people here, in the trailer park

      Oh, don’t go get me wrong, they’re fine people, they’re good Americans, but they’re content to sit back, maybe watch a little Mork and Mindy on channel 57, maybe kick back a cool Coors 16-ouncer…
      They’re good, fine people, Stuart

      You know that Jonny Wurster kid, the kid that delivers papers in the neighborhood? He’s a fine kid. Some of the neighbors say he smokes crack, but I don’t believe it. Anyway, for his tenth birthday, all he wanted was a burrow owl. He kept bugging his old man; “Dad, get me a burrow owl! I’ll never ask for anything else as long as I live!” So the guy breaks down and buys him a burrow owl
      Anyway, 10:30 the other night, I go out in my yard and there’s the Wurster kid, looking up in the tree! I say “What are you looking for?” And he says “I’m looking for my burrow owl!”
      And I say “Jumpin’ Jesus on a pogo stick! Everybody knows the burrow owl lives in a hole in the ground! Why the hell do you think they call it a burrow owl, anyway!?”
      Now Stuart, do you think a kid like that is going to know?

      I first became aware of all this about ten years ago, the summer my oldest boy, Bill Jr., died. You know that carnival comes into town every year? Well this year they came through with a ride called The Mixer. The man said “Keep your head and arms inside The Mixer at all times.” But Bill Jr., he was a daredevil, just like his old man!
      He was leaning out saying “Hey everybody, look at me! Look at me!” POW! He was decapitated! They found his head over by the snow cone concession!
      A few days after that, I open up the mail And there’s a pamphlet in there from Pueblo, Colorado, and it’s addressed to Bill Jr.

      Now Stuart, if you look at the soil around any large US city with a big underground population, des Moines Iowa, for example. Look at the soil around Des Moines, Stuart, you can’t build on it, you can’t grow anything in it, the government says it’s due to poor farming, but I know what’s really going on, Stuart! They’re in it with the aliens! They’re building landing strips for
      Martians, I swear to God!

      You know what, Stuart? I like you
      You’re not like the other people, here in the trailer park

    • If a foreign student has been taking space in grad school for multiple degrees using OPT and CPT programs to remain in the US while trying, unsuccessfully, to get an H1b visa, perhaps they could consider returning to their home country and applying their education there? I really think there should be a limit on the amount of time someone can be allowed to use an F1 student visa.

  3. Weather you pose American as sam, andy or lisa etc. and support h1s, you no need to worry. The leaders worrying a lot about you guys to do their best to help Indians in any way possible whether it is F1 or H or L visa or green card. 2019 tax returns were still not processed for millions of Citizens due to shortage of staff but EB2 and EB3 is processing is going at a rapid pace. How that is possible? Is it because of election campaign funding directly or indirectly or the government also off shored like jobs?

    • typos above corrected:
      Weather you pose with English names such as Sam, Andy or Lisa etc in comments and support h1s, actually you no need to worry at all. The leaders worrying a lot about you guys to do their best to help Indians in any way possible whether it is F1 or H or L visa or green card. 2019 tax returns were still not processed for millions of Citizens due to shortage of staff but EB2 and EB3 is processing is going at a rapid pace. How that is possible? Is it because of election campaign funding directly or indirectly or is the government also off shored like jobs?

  4. If a foreign student has been taking space in grad school for multiple degrees using OPT and CPT programs to remain in the US while trying, to get an H1b visa, they should return to their home country and applying their education there? .We don’t need any more foreigners to take American jobs please

  5. What is the propose of H1B visa: Hire high skill workers, because of a lack of high skill workers in our workforce. Do we have in IT a lack of high skill workers?. I don’t think so, the data shows we have a surplus of people in IT. A few weeks ago I applied for software developer position, the company received more than 300 applicants, they interviewed 12 and they didn’t hire anybody, they said none of this 300 people qualified for the position. There ad was regular ad 5 years of experience, c# bla bla bla.

    • Patrick

      Big companies have been pulling the skills gap excuse since the Great Recession. There have been articles that have debunked it thoroughly but companies still trot it out to clueless bureaucrats and they keep buying it. The reality is that companies have no intention on hiring entry level tech workers if it means having to provide any on-the-job training while fighting over mid and senior level devs, who are slowly reaching retirement age. And rather than pay those specialized developers what they deserve, they turn their positions contract-based and lowball them, knowing a dev with 10 years experience won’t settle for a job that pays so low for their expertise.

      The result is job postings with ridiculous requirements designed to be too inflated for recent grads to reach and not well-paying enough for experienced developers. Combine it with more arbitrary requirements and even if a posting has hundreds of eligible applicants, the company can get even more picky until they’re all eliminated, say they attempted to find someone but they can’t find any talent locally, then get an H1-B worker and underpay and overwork them.

      • Jake_Leone

        You should read the DOJ vs Facebook indictment on 2600+ counts of discrimination against local STEM/IT candidates.

        What happens is that foreign workers have some big advantages over local workers, and none of them involve actual skill.

        1 – A foreign worker can trap themselves in their current employer, typically this occurs because of the Green Card wait time.

        To fix this,

        Put the Green Card process in the hands of the employee, not the employer.

        We should require employers openly advertise PERM jobs ads on, up to 10 places, free services, and sites ranked by popularity. Facebook refused the Chronicle’s free offer to place the PERM ads on the Chronicle website (Facebook has it’s own website, and it refused to put the PERM jobs ads on its own website).

        Companies should be forced to use Email (not snail mail) for applicants (Facebook required mailed, stamped, letters for the PERM job applications).

        Companies should be required to forward qualified resumes, for applicants they were unable to hire (because of a lack of positions) to the hiring managers in the Green Card process, for review.

        Facebook receives hundreds of resumes for every openly advertised STEM/IT job ad. Of those hundreds, Facebook admitted to Federal investigators it routinely finds 30 or more fully qualified applicants (but unfortunately, only 1 job/ad that Americans are allowed to compete for). Facebook never forwards the resumes of the 30 or more fully qualified applicants (better qualified than the foreign workers (and by Facebook’s own admission to Federal investigators) to the hiring managers in the PERM process. It is amazing the lengths that companies will go to, to protect a self-indentured foreign worker from actually having to compete for a job with better qualified local candidates. (READ the indictment, it is on the DOJ website)

        A Green Card applicant should have at most 2 tries to prove themselves in the PERM process (currently, an applicant can retry an infinite number of times).

        2 – It is apparent, that not all employers are willing to take on an H-1b applicant (for example defense work). If a worker suddenly loses their H-1b job, they can’t stay long, and will like have to return to abject poverty. That’s a huge motivator to put in long 80 hour weeks, and even to pay kick backs to their employer.

        To fix this, the H-1b process should be owned by the employee, not the employer. And, if the economy is going well, they should some extra time to find another job (maybe 4 months, instead of 2).

        3 – H-1b workers will accept 25% less salary than their equivalently skilled local STEM/IT workers. See a previous article by Nick on this.

        Raise the salary requirement of H-1b workers, to something more realistic like the average (not the 17th percentile).

        Allocate H-1b visas on a salary basis, instead of a brain-dead lottery. A lottery that is gamed, and mostly won, by Offshore Outsourcing companies (which pay the lowest salaries of the H-1b (ab)using companies.

        4 – The OPT program gives employers 3 years to try a foreign worker out. And the employer gets a huge break of 15% because they don’t have to pay the FICA tax. My first tech employer was a small company, and the boss complained massively about having to pay the FICA tax. What can I do? I can’t just tell him I’ll pay it, because he will think he is entitled to not pay taxes.

        To fix #4 we should cut the duration of the OPT program back to 6 months, and extend the tax break to all students (or all people starting a new job, for 6 months).

        These fixes have been known for decades.

        So Zoe Lofgren holds a hearing with Stuart Anderson, who opposes all these changes. The same Stuart Anderson who lied under oath in Congressional testimony saying that 99% of H-1b visas are not used to displace American workers. But we know, from U.S. government data, that half the H-1b visas go to Offshore Outsourcing companies that do NOTHING BUT DISPLACE AMERICANS with people coming in on an H-1b visa.

  6. I have said it before, the whole H1B program is, and has been, a SS from beginning to end. It is not needed in this country. Big business use to get cheaper labor. Just get rid of the damn thing.