Trump's H-1B Immigration Changes that Biden May Keep

By Rishi P. Oza

The last few weeks of the outgoing Trump Administration have been as rocky and unpredictable as any time in recent American political memory. President Trump's unverified insistence on a “stolen election" has been panned by critics and rebuffed by the courts, including cases before the President's own judicial appointees. While the media spotlight has predictably been focused largely upon the buffoonery of the President and his followers, the Trump Administration continues to tinker with immigration regulations that may have a wide-ranging impact upon individuals in the United States; more notably, some of these changes may not be overturned by President-elect Joe Biden after his inauguration.

On January 8, 2021, the United States Citizenship and Immigration Service issued a final rule that is designed to alter the way in which H-1B registrations are selected. The H-1B selection process underwent noticeable systemic changes last year, as USCIS stopped requiring applicants to submit the full H-1B application paper filing on April 1st for consideration under the H-1B CAP lottery. Instead, USCIS replaced the full filing with a shortened registration process, in which an employer had to input limited information (company name, address, FEIN, etc.) into an online system, along with their employee's passport and biographic information.

This electronic filing streamlined the registration process significantly, which resulted in an easier and faster registration process and a lower cost for registrants with the only complaints coming from attorneys who were now unable to charge large fees for document preparation. Once the registration window closed, USCIS conducted its lottery and selected registrants at random for submission of the H- 1B paper package. Those selected registrants had to then submit their filings for consideration by USCIS.

The US Departments of Labor and Homeland Security attempted to revise other H-1B regulations in October 2020, which resulted in a significant hike in the prevailing wages required to be paid to H-1B applicants. The rule change was struck down by the US District Court for Northern California, which reverted the system back to its pre-October rule set. Now, DHS has issued a revised final rule that does not amend the way that wages are calculated, but how the random H-1B selection process is conducted.

The new rule replaces the previous random selection process with a wage-based selection approach, which would prioritize the selection of H-1B registrations based on employers who pay the highest wages. USCIS has repeatedly asserted that the H-1B program is filled with exploitation and abuse and that the scheme unfairly depresses wages for American workers.

Critics argue that favoring only the highest paid workers may unintentionally deprive lower paying industries from needed H-1B talent (i.e., teachers and private laboratory workers). By prioritizing the highest wage level workers (Level IV), USCIS would starve new college graduates of employment opportunities, along with employers that may not be able to operate on Fortune 500 budgets. Moreover, USCIS and the DOL fail to consider that the required wage levels that are used for H-1B visas are created by these same agencies, which undercuts the rationale that wages are depressed.

What remains uncertain is the approach that the incoming Biden Administration will take with respect to implementing “midnight regulations," which are those issued after the election but not yet effective. The President-Elect's transition team has telegraphed that most of the immigration-related regulations issued by the Trump Administration may be halted immediately upon President-Elect Biden's inauguration, but the H-1B changes may gain traction. Democrats have continued to seek to cater to unions, which have often accused the H-1B program as resulting in American worker job loss. Although the President-Elect has not clarified its position on this new position, industry will undoubtedly push back, as it has remained fiercely protective of H-1B talent that the American economy continues to demand. As is always the case with most of the Trump Administration's regulatory changes to the immigration, litigation should be expected.

----------

Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com