Biden Regulatory Agenda Hints at Big H-1B Changes on the Way

How will the Biden administration adjust the H-1B? In the eight months since Biden’s inauguration, critics and advocates of the visa have openly debated that question.

Biden’s first regulatory agenda, published this summer, offers some faint clues. The agenda states the administration’s intention to “modernize” H-1B requirements, although details remain vague. A rule filed by the Department of Homeland Security reads:

“The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to “employer-employee relationship;” implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers and H-1B petitions, where there is indicia of fraud; provide flexibility on the employment start date listed on the petition (in limited circumstances); address “cap-gap” issues; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

There’s quite a lot to unpack there, but the main takeaway is that the Department of Homeland Security could change much about the visa, from how the federal government determines abuse to how companies can adjust their applications.

It’s helpful to remember that the Trump administration also placed H-1B applications under more stringent review, which led to a marked boost in the visa’s denial rate between 2016 and 2020. That’s in addition to an adjustment in visa fees, which potentially made applications spectacularly expensive for the consultancies and business-services firms that apply for thousands of H-1B workers every year (and then subcontract those workers to other companies). 

Near the end of Trump’s term, the Department of Labor (DOL) proposed a Final Rule designed to reform the H-1B system from the ground up, including a stricter application review. In January 2021, Trump’s Department of Homeland Security (DHS) also issued a Final Rule detailing the ranking and selection of H-1B registrations based on wage levels. The latter rule’s implementation, originally slated for March, was pushed to December 31, 2021

While you might think the Biden administration would reflexively roll back as many of Trump’s rules and orders as it possibly could, Department of Justice lawyers are currently arguing to preserve that Homeland Security rule about H-1B wages. In a recent legal filing in U.S. District Court (Northern District of California), those lawyers argue that wage-based selection will align as much with the law as the current, randomized lottery: “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.”

Aside from this particular battle over wage-based selection (and Biden’s U.S. Citizenship Act of 2021, which would prioritize visas based on wages, but needs to pass Congress first), the Biden administration hasn’t publicly revealed much of its thinking about H-1Bs. If this regulatory agenda is any indication, though, the administration could eventually push some big reforms—which would have a sizable impact on everything from applications to fraud. Stay tuned. 

7 Responses to “Biden Regulatory Agenda Hints at Big H-1B Changes on the Way”

  1. jake_leone

    It makes sense to allocate H-1b visas based upon salary. And we can protect non-profits by putting “This is from a non-profit” check box on the H-1b application form. Then, allocate H-1b visas to non-profits using a brain-dead lottery (so no change for, and no affect on, non-profits).

    Offshore Outsourcing companies gobble up half the H-1b visas, and they do nothing but move entire departments and all supporting jobs to India. And they can do that because:

    – No one is checking for duplicate entries
    – Offshore Outsourcing companies pay the lowest possible salary

    So Offshore Outsourcing companies stuff in a huge number of redundant applications, and in doing so ensure that they win half the H-1b visas.

    Silicon Valley barely uses 1/3 of the H-1b visas directly. And that is because Silicon Valley companies don’t try to game the H-1b program (they just can’t, they find their candidate (after ignoring 30 or more better qualified local STEM/IT candidate, see DOJ vs Facebook)). And then they put in that 1 application.

    Offshore Outsourcing companies find 4, mediocre trainees, for every 1 job. Then they stuff in all 4 applications (x 40,000 scab jobs), and then they are assured of winning half the H-1b visas.

    Immigration lawyers (for counter-fiduciary reasons) love the current brain dead lottery, because they are the ones making money from the 75% or more H-1b applications that wind up being redundant.

    But hey, what do I care. I benefit from the fact that my company has a hard time (only a 1-in-4 chance) of obtaining an H-1b visa for a vetted candidate. And hey, keep the salaries low, so that only freshers from abroad will apply. And people in Japan, Europe, and Israel will never apply, since the salaries are at parity with the U.S.

    And that OPT student, he only has a 1-in-4 chance of getting an H-1b visa, so that OPT student will leave and never get to challenge me with any acquired domain knowledge.

    If we changed to a salary ranking for H-1b visas, then I would be worried. Because my company has offices in Europe, Japan, and Israel, that do sales. In the past, they have contributed code. If their proven STEM/IT workers could make the same salary over here, and have a good chance of getting an H-1b visa, they could threaten my job.

    Yeah, so keep the OPT 15% tax break for foreign students only, and keep that 27 month OPT visa going (because around half the time, the OPT worker never gets an H-1b visa). That way, other Americans are excluded from my workspace, and can never compete with me for my job.

    And keep giving half the H-1b visas to Offshore Outsourcing companies. Offshore Outsourcing companies that can only copy well-scripted non-design jobs here in the U.S. and send them overseas. That way we will have a sluggish recovery (or massive inflation, if the FED keeps up the ridiculously low interest rates in the face of inflation, and my house will be worth 5 million). Then a Republican will win the White House and lower my taxes and capital gains taxes.

  2. The next big thing to consider for the H1b is the allocation to be set based on the same per-country caps used for allocation of green cards. This ensures diversity and helps ease the pressure of employment-based green cards oversubscribed by only two countries. It is cruelty to have these workers tied to their employer for so long, but we have diversity limits for a reason: diversity. We should never arrive at work one day to find that 90% of the people in the building are suddenly from only one foreign country – that is totally unacceptable.

    • This is just pathetic really. American jobs need to be for valid, authorized Americans only first (and foremost). What country lets outside visa holders to stake claim on jobs. Also, I agree these Indian tech cos. have been milking US cos and fattening their bottom lines for decades now. Its time these H1, L1’s are regulated. Also, yes why cant there be more diversity in issuing these h1, l1 visas. Why only issue to indian firms. Why cant there be more issuance of these to eligible folks from other countries too.

      • Bruce Childs

        It’s great to hear there will be reform. Take a look at Citibank corporate in Tampa or Toyota corporate in Texas. I have contracted at both sites only to see ratios of Indian work force far off from the ratios of Indians to Americans in the surrounding area. Both example have 9 of 10 employees being from India. And this is not an exaggeration. It’s ridiculous. Oh, and Toyota in Texas, the CIO is of Indian decent. Hard to believe that his work force is predominantly Indian. It’s ridiculous when you, as an American, walk in for your contract and you are out numbered 10-1 (India vs. American born and raised). And trust me. The majority of them don’t like working with Americans. I was there and experienced it.

  3. Basically nothing is going to harm to H/L. If they really propose tougher rules for H1B, by then they are going to clear backlogs for green cards in back door to support Asians(south) or remove country limit for greencards. Their priority always Asians(south).

  4. A tightening up of the H-1B rules might be a way to get the Democratic Progressives on board.

    Why?

    Because Bernie Sanders ran on a platform in the primaries, both in 2016 and 2020, that called to tighten H-1B regulations. A free-for-all labor market lessens worker protections and worker wages, so progressives are just as much against it as the nationalist-populist group over in the Republican Party.

  5. Anonymous

    The only changes will be so that Indians can keep coming here in droves, and grab all the good jobs here on top of all that is already outsourced over there, this is how this stupid country works.