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H-1B Employers Foresee Wins, Losses in Biden Approach to Visas

Dec. 1, 2020, 10:30 AM

Employers of H-1B workers with special skills have criticized the Trump administration’s changes to the visa program, but they may not see an automatic reversal of those policies under President-elect Joe Biden’s administration.

Biden has said he’d work with Congress to first reform temporary visas “to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages.”

“High skilled temporary visas should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations,” according to Biden’s immigration platform.

That pledge to create a wage-based process for H-1B visas echoes a proposed rule released by President Donald Trump’s administration in October, which would prioritize the selection of H-1B registrations or petitions based on the highest corresponding wage levels, which are typically divided into four tiers representing entry-level to senior job positions. The current lottery system selects petitions for adjudication at random.

“We shouldn’t expect a complete 180 from President Trump,” said Roger Tsai, an immigration partner for Holland & Hart in Denver. “There are certainly areas where Obama, Trump, and Biden probably align.”

Still, the president-elect’s immigration policies are likely to diverge sharply from those of his predecessor elsewhere, particularly on the issues of asylum and creating a path to citizenship for otherwise law-abiding people who were brought into the country unlawfully while they were still children.

More Visas Needed

The focus on wages is likely due to influence from organized labor, “which has a skeptical view of the H-1B program,” said Daniel Griswold, a senior research fellow at the Mercatus Center at George Mason University.

“If President Biden wants to take action in the interest of the U.S. economy,” there need to be “more visas and less red tape,” said Griswold, who is co-director of the center’s Program on the American Economy and Globalization.

Biden’s immigration platform for temporary foreign workers includes adding more visas to the annual cap, which could alleviate many of the issues in the H-1B program.

“The long-term issue with H-1Bs is we just don’t issue enough of them,” Griswold said. The program is capped at, effectively, 85,000, and that’s been the cap for 30 years, despite the U.S. economy changing and growing, he added. “If we had more visas, the lottery would be a lot less important.”

Tsai agreed, noting that the central issue of the H-1B system is that the entire annual supply of visas is exhausted in one day, when the lottery selects from hundreds of thousands of hopeful workers.

Almost three times the number of businesses and groups were seeking the visa than actually received it this year, he said. “It’s a drop in the bucket to change how they are selected versus the actual need.”

‘False Dilemma’

Biden’s approach is sending signals “all over the place” about H-1B and other temporary visa programs, said RJ Hauman, government relations director at the Federation for American Immigration Reform. Hauman cited the campaign’s support for a numerical visa increase, but acknowledgment of visas’ potential effect on U.S. workers as an example.

The president-elect’s potential support for a wage-based H-1B lottery system is “exactly what the Trump administration has been trying to do at the agency level,” Hauman said. “So will Biden check politics at the door and side with American workers in the middle of a crisis or big business? Who knows, but if they do the latter by gutting protections and issuing new regulations that harm American workers, they’re opening up a can of worms and I’ll leave it at that.”

One immigration attorney who represents businesses in the middle of the country said she hopes the Biden administration won’t use the wage issue to constrain the program.

“It’s a false dilemma,” said Mira Mdivani, a business immigration attorney in Overland Park, Kan. “We need to stop the craziness of allocating only so many visas for employers to hire high-tech personnel or doctors. That only results in detriment to our economy and our people.”

Allocating H-1B visas based on wages ultimately will undermine smaller companies and companies in the Midwest that can’t compete with companies in California or New York, Mdivani said. “It will put the Midwest at a disadvantage compared to the rest of the country, and America at a disadvantage to the rest of the world.”

First 100 Days

Biden’s immigration plans during the first 100 days of his presidency largely revolve around reversing Trump’s near elimination of the U.S. asylum process.

Among those items he has vowed to address are ending family separation; ending restrictions put on asylum seekers who travel through Mexico or Guatemala; reversing policies that limit asylum for victims of gang and domestic violence and LGBTQ individuals; and stopping the practice of “metering” at the border, which limits the number of asylum applications accepted each day.

Those goals also are reflected in Biden’s selection of Alejandro Mayorkas to lead the Department of Homeland Security, an Obama administration alumnus who came to the U.S. from Cuba as a baby.

Mayorkas would be “a sharp contrast to the people the current administration have put in charge,” said Mdivani, adding that the Trump administration has directed DHS “to destroy the H-1B program.”

Mdivani noted that Mayorkas was head of U.S. Citizenship and Immigration Services when it implemented an optional practical training extension for individuals studying science, technology, engineering, or math, giving participants an extra two years of work authorization, and he also led efforts to expand the Entrepreneurs in Residence initiative.

“Judging by what Alejandro Mayorkas did when he was with USCIS before, I think it will be a positive step because he was known as a builder of legal ways for employers to strengthen the economy,” Mdivani said.

Though the Biden administration will likely have major priorities other than the H-1B visa program, “if they understand that part of the economic recovery is making sure employers can hire qualified international personnel, that is an important realization,” Mdivani added.

Griswold agreed. “The H-1B program is a huge issue for the Biden administration if it wants to help the U.S. economy get back on track,” he said. “It’s provided important labor and talent for the U.S. tech industry and that will be very important for recovering from the pandemic.”

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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