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Lawmakers Revisit Changes to H-1B Lottery in Immigration Plan

Feb. 18, 2021, 9:10 PM

Employers of H-1B visa holders could see a Trump-like wage-based selection system put in place by the Biden administration under a provision included in its newly released immigration legislation.

According to the U.S. House and Senate bills introduced Thursday, the U.S. Citizenship Act of 2021 would give the secretaries of Homeland Security and Labor the authority to determine the order in which visas should be distributed among H-1B workers, including through regulations “to establish procedures for prioritizing such visas based on the wages offered by employers.”

The bill also extends this criteria for selection to “any other category of nonimmigrants deemed appropriate by the Secretary for Homeland Security.”

The change to a wage-based process for H-1B visas echoes efforts by former President Donald Trump to reform the system. The Department of Homeland Security announced on Feb. 4 it was postponing until year’s end the Trump administration’s H-1B lottery rule’s effective date.

The agency said the delay was needed because U.S. Citizenship and Immigration Services wouldn’t have enough time to overhaul the popular visa’s process before the fiscal 2022 online registration period opens in March.

A plan from Biden administration agency heads is unlikely to “be identical to the Trump H-1B wage rule, but it is similar in concept,” said Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School. Moreover, “this would only authorize DHS and DOL to consider a wage-based system; it doesn’t require it,” he said.

This isn’t the first time Biden has included the provision in his immigration agenda. The president’s campaign platform said he’d work with Congress to 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.”

The H-1B lottery system currently selects petitions for adjudication at random to meet the 85,000 annual visa cap.

An Uncertain Future?

The Biden administration’s delay of the H-1B lottery rule’s implementation won’t affect this year’s selection process, said Maka Hutson, an immigration attorney with Akin Gump Strauss Hauer & Feld LLP in Dallas.

“However, next year’s H-1B lottery may very well be based on a wage-based priority,” she said.

One group of H-1B hopefuls to likely lose out if the selection system is changed are foreign students graduating from U.S. colleges and universities, said immigration attorney Fiona McEntee.

Many H-1B petitions are filed for people who have been in the U.S. as foreign students, and they may be going for an entry-level job as a specialty occupation worker, she said.

As a recent graduate, however, “they won’t be commanding salaries that would be at the top of the wage levels.”

Additional Considerations

The Biden administration still could put its own twist on the plan, including rescinding the Trump rule and starting from scratch.

Hutson noted the administration could opt to exempt certain industries, like nonprofits, from the wage-based priority system.

“There could still be significant changes to how this is implemented, but the proposed statutory language would certainly strengthen the ability of the administration to prioritize higher-paid H-1B workers in the lottery,” she said.

McEntee said that lawmakers and agency heads must consider immigration system reforms that reflect the market.

“We don’t want to be the country that only has visas for extraordinary, or executive, or bust,” she said. “We should be striving for an immigration policy where there’s room for everybody.”

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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