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Biden to confront Trump’s H-1B work visa changes

The Trump administration is eliminating the H-1B work visa lottery program. But a Biden administration may get some pushback if it tries to reverse Trump’s wage-based distribution system

Days before the election, President Trump’s administration launched a plan to eliminate the H-1B visa lottery system. A month earlier, the president decided to raise visa wages. The tech industry and business groups are hoping that President-elect Joe Biden will reverse some of Trump’s actions when he takes office, especially the wage increases.

Biden has not spelled out what he plans to do with the H-1B visa program. But he has received financial support from Silicon Valley and has signaled — without much detail — more support for the program. Regardless, a Biden administration will face longstanding battles over this program that have pitted industry against labor groups.

Take the lottery change. If the government receives more visa petitions than the 85,000 annual cap, H-1B work visas are distributed by lottery. In many years, the U.S. has received three times that number of applications, forcing a lottery on April 1, the next fiscal year’s distribution date.

Trump plans to replace the lottery’s random distribution system with a salary ranking system. The higher the wage, the better an employer’s chances are of getting a work visa.

The ranking system is not a new idea. It’s in the policy ballpark of pending legislation by Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.). Their bill calls for prioritizing the annual allocation of 85,000 H-1B work visas around advanced degree holders, high wages “and those with valuable skills.”

Russell Harrison, director of government relations at IEEE-USA, said the Trump administration’s H-1B work visa distribution plan “is both sound and, frankly, clever.”

Trump’s system ranks salary relative to other jobs in a visa worker’s geographic location. A ranking that excludes geography would disadvantage workers in lower-wage areas, Harrison said. Without it, high-paying Silicon Valley firms would dominate the lottery, he said.

The government is seeking public comment on the H-1B lottery change. Once the comment period ends Jan. 4, Trump would have time to finalize the rule before Jan. 20, which will be the last day of his presidency.

The Biden administration can reverse the regulation, but doing so would take time. It would have to justify why the regulation should be eliminated and risks facing litigation from parties opposing a rollback.

If the regulation is not rolled backed, industry groups are likely to sue once the lottery replacement rule is finalized. According to one tech industry source, it expects to argue that the plan will disadvantage some workers.

Even if Biden’s H-1B position is less than clear, there’s an expectation he will go easier on the program, said Peter Bendor-Samuel, founder and CEO of Everest Group, an outsourcing research firm and consultancy in Dallas. Read more via SearchSoftwareTechTarget

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