How Will the Biden Administration Actually Tweak the H-1B Visa?

The Biden administration still wants to tweak the H-1B program.

U.S. Citizenship and Immigration Services (USCIS) has a much-delayed proposal (now scheduled for May 2023) that could adjust the definition of the H-1B employer-employee relationship, and tweak crucial guidelines such as employer site visits and F-1 students changing their status to H-1B. According to SHRM (which has a nice breakdown on the topic), the proposal will also “clarify the requirement that an amended or new H-1B visa petition be filed if there are material changes to employment, including a new worksite location.”

During the Trump administration, USCIS introduced a more stringent review policy for the visa that increased the rate of application denials; by fiscal year 2018, the H-1B denial rate spiked to 24 percent. In addition, Trump tried to reform the H-1B lottery system to favor applicants with higher salaries and advanced degrees.

After Trump left office, the Biden administration signaled that it would develop and implement its own H-1B policies, including a proposal to prioritize H-1B visas based on higher wages. As time passed, however, the new administration didn’t announce anything substantial, choosing instead to focus on other issues such as COVID-19, inflation, and international affairs. In the interim, some Trump-era immigration policies expired and the H-1B denial rate plunged to 4 percent.

The big question is what USCIS’s proposal will offer up in terms of tactical reforms. Last year, Biden’s first regulatory agenda suggested a “modernization” of H-1B requirements, but details were scarce. At around the same time, Department of Justice lawyers argued to preserve Trump-era Homeland Security rules about H-1B wages, including that wage-based selection would align as much with the law as the current, randomized lottery. Will Biden’s people ultimately push for more radical change, or just some tweaks (with the preservation of some Trump administration work)?

In the meantime, the heated debate over H-1B visas continues. Critics of the program insist that tech companies misuse the visa to import relatively cheap labor into the United States; meanwhile, advocates argue that visas are a sure way to ease the country’s tech talent shortage.

6 Responses to “How Will the Biden Administration Actually Tweak the H-1B Visa?”

    • Jake_leone

      Or maybe, like Siru Murugesan (engineer at Twitter) says, they only have 4hrs of work a week to do, and are ripe for layoff. Twitter, obviously, has too many STEM/IT workers and needs to do a big layoff. They could probably start this in advance of Musk buying them.
      The entire tech industry is actually a huge avalanche waiting to happen. The key to preventing this is get more creativity and motivation to develop new features and product, into upper management.
      Twitter has 900 million$/yr payroll, but loses 221$ million a year.
      If as Siru said, they only have 4hrs of work a week to do, they maybe they could fire 90%, of their workforce, and start making about 500 million a year in profit.

  1. Jake_Leone

    So the change to a wage based allocation, (instead of the brain dead lottery), was implemented by the Trump Administration, Biden shelved it. Biden has had 2 years now to revive it, he hasn’t. The reason is simple, no one wants to pay him to do it. The reason for implementing the wage based allocation are massive towards the good:
    – It would clear up the H-1b back log in the 2nd year (as more than half the H-1b visa requests come from Offshore Outsourcing companies, that pay the lowest wage).
    – Currently, a person working on student visa, has only 1-in-4 chance of converting to an H-1b visa. In the 2nd year, implementing this rule, conversion from student visa to H-1b visa, would become a certainty.
    – Instead of more than half the h-1b visa going to Offshore Outsourcing companies. All the H-1b visas would instead go to technology originating companies. Literally, instead of moving jobs to India, the H-1b visa would 100% for creating tech here in America (and so more likely to create jobs here). That’s a massive swing to the positive, from the current absolute negative.
    Offshore Outsourcing companies don’t go after software development jobs. They look for well scripted jobs in HR, Accounting, and customer service. Literally by keeping the Brain-Dead lottery, the Biden is increasing the expanse of the rust-belt, because all the clerical jobs can be more easily moved to India.
    Big Tech is not having any issues finding qualified STEM/IT workers. We know this because Facebook had to admit, to Federal Investigators (under penalty of an obstruction of Justice charge) that Facebook finds 30x more fully qualified local STEM/IT workers than it can actually hire.
    Half the people who graduate with a STEM/IT degree, never find a job in STEM/IT. The unemployment rate is low in STEM/IT, only because it is hard to find a starting job. Starting jobs are all taken up by head hunting firms, looking for jobs for their benched H-1b workers.
    Big Tech actually likes the Green Card back log (hence no change there will ever occur, under Biden, because no one is willing to pay for it). Because the Green Card backlog ties workers from India to a company, for decades, while waiting for an H-1b visa. Hence, the admitted 2600+ cases of discrimination by Facebook (it happens all over Big Tech, same lawyers, same policies) over just a 1.5 year period. Facebook and Big Tech gave the Democrats a 100 million dollar campaign contribution. Payback from Biden, a slap on the wrist for Facebook, of 15 million, on a case that should (if matched against similar cases) had a 260 million dollar fine due.
    Biden doesn’t care about the non-donor class. If you are not part of a Union, Biden doesn’t care. That is why Biden is making it easy for the Offshore Outsourcing companies to continue to take all the visas. Meanwhile, our tech startups (quite different from Big Tech in terms of political donation capability) can’t get an H-1b visa for the 1 or 2 key people they are bringing in per company.
    Big Tech companies don’t have (and never have had) problems finding qualified employees. Anyone, in their right mind, will move from a startup (where your job could end at anytime), to a Big Tech employer.
    Big Tech can simply lie all they want to the public and press. But in one case, the DOJ case against Facebook on 2600+ cases of discrimination against fully qualified local STEM/IT candidates. They knew they could not lie to Federal investigators without risking major jail time. In that one case, they had to tell the truth.
    The STEM/IT worker shortage is lie perpetrated by Big Tech on the American public and the U.S. economy. Simple changes could make the H-1b program much better, but H-1b never changes, because Big Tech likes the program as-is. What Big Tech wants, and always has (for decades now since Elaine Chao re-wrote the Green Card rules for them), is an indentured workforce. And they have exactly that, with the long wait that candidates from India are experiencing in the Green Card process. A process that is often done fraudulently, in order to get more people from India in an indentured state.

  2. Jake_Leoney

    Half the H-1b visas go to Offshore Outsourcing companies, that do nothing move entire departments to India. When people say the current H-1b visa program creates jobs, they are bald face liars.
    The DOJ case against Facebook, on 2600+ cases of discrimination against better qualified local candidates, is the only source of information from the industry that we can trust. That information was obtained under the threat of an Obstruction of Justice charge. Any untrue statement, made by Facebook, to Federal agents could land the Facebook employee in jail for up to 10 years. Martha Stewart, a billionaire, went to jail for lying to Federal investigators.
    We can make the H-1b program, a better program for the American economy, by kicking the Offshore Outsourcing companies out of the program. That 24% rejection figure under Trump, was actually a composite of a 50% reject rate for Offshore Outsourcing companies, and the same low rejection level (as under Obama) for all other employers.
    Literally, the H-1b program was never working better for the U.S. economy as it was under the Trump administration. And the change from a brain dead lottery, to an allocation based upon salary, would have made it easier for Startups (which typically heavily vet their highly paid candidates) to get access to an H-1b visa for their workers.
    Biden nixed every Trump change, because Biden hates Trump. Sometime people can’t recognize that their hate is actually a big disservice to the people they are elected to serve. And further, it prevents their team from winning, a big tactical economic gain. This is what we see, over and over with the Biden administration.
    The U.S. economy isn’t a football game, it is a cooperative challenge, that we need to optimize. The changes made to H-1b, under Trump, were actually huge optimizations of the program, that if Biden would have kept them, he would be seeing even larger growth in the U.S. tech sector. Instead, what we are seeing is a repeat of what happened under the H-1b program under Obama.
    The U.S. endured the slowest recovery in history (longer than even the Great Depression) under Obama. And through out that period, even though unemployment was high, Offshore Outsourcing companies were being allowed to use the H-1b program to facilitate the removal of millions of ordinary clerical, accounting, and HR jobs to India. That failure to fix this massive hole in the program, and the willingness to repeat industry lies (for political donations), led to the defeat of Hillary Clinton.
    People simply are not happy training their H-1b replacement, so they can hit the unemployment line or some lousy Gig job. And it wasn’t the engineers who were the victims, it was the ordinary computer workers who were affected, because they were working well scripted jobs that could be easily documented and shipped overseas.

  3. Jake_Leone

    Nick,
    Back Jan 2021, I wrote this in regards to the Biden considering a change from lottery to a salary based allocation, and it has all come true (but I am not surprized), as I have been watching Biden closely for the last 14 years:

    “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.”

    Those who fail to learn from the past are condemned to repeat the mistakes. Biden just can unlearn to paid-off-politician way, it is too late for him, maybe for us too.

  4. Jake_Leone

    The Biden Administration, could have implemented the Trump change from a Brain Dead lottery for H-1b visas (Gamed and mostly won by Offshore Outsourcing companies) to an allocation based upon salary. The Vox article failed to mention the reasons, why Biden has failed (everyone) in this regard, here they are:

    ‘(the Biden) DHS justified its (change to a salary allocation of H-1b visas) withdrawal entirely on a September 15, 2021 ruling from the U.S. District Court for the Northern District of California. The court vacated the regulation after concluding that former (acting) Secretary of Homeland Security Chad Wolfe (Trump administration) was not lawfully appointed to his position, and therefore, had no authority to issue the regulation. Three months later, DHS published a notice to withdraw the rule merely stating that DHS intended to “comply with the court’s decision.” ‘

    Biden doesn’t care about the H-1b visa. He only cares about campaign contributions. Since no was paying for the change, it was shelved. Even though this change would have been a profoundly moral change to the Good. It would have resulted in more people here on OPT converting to an H-1b visa. It would have cleared up the H-1b back log (in 2 years). It would have then gone on to clear up the backlog for Green Cards for people from India and China.

    But Biden nixed it. Because no one paid for the change.

    We know Biden works this way, pay to play, because his own son (Hunter) said this in an Email (taken from the lost laptop) when considering doing business in another country, when Hunter also needed political help from his dad.