President Biden's Day 1 Executive Orders and the Future for H-1B Visas
President Biden, on his first day in office, signaled his stance on immigration by issuing multiple executive orders that directly impacted the immigration law landscape, especially for employment-based visas previously limited by the Trump Administration.
Several of these orders involved areas outside of employment-based immigration, such as preservation of the Deferred Action for Childhood Arrivals (“DACA”) Program, the end to the ban on individuals from certain Muslim-majority countries, and reallocating funds previously set aside for the border wall.
Regarding employment-based visas, Biden ordered Federal agencies to consider freezing all regulations and rules issued by the Trump Administration that were not finalized prior to his inauguration on January 20th. One such Trump Administration regulation sought to change the registration system and prioritization of H-1B petitions subject to the 65,000 cap on H-1B visas each fiscal year (October 1st to September 30th). This regulation would have replaced the current H-1B lottery process with a process to prioritize employers offering a higher salary to the foreign worker, so that those employers offering the highest wages to the foreign worker would have an advantage. This rule, intended to go into effect on March 14, 2021, will likely be paused under Biden’s order.
Although Biden’s order would pause this Trump Administration regulation, Biden’s immigration reform plan will likely incorporate some aspects of this regulation because Biden’s plan includes overhauling the H-1B visa selection process to create a more predictable process for employers and foreign workers. The “lottery” system currently in place, as the name suggests, provides little guarantee of success for those who apply for a visa. To increase predictability, Biden’s proposal would give priority to H-1B applications based on the wage level offered to the foreign worker, albeit not as high as the Trump Administration’s proposed rule. Biden’s plan would also include an increase in the number of H-1B visas available for petitioners.
Regarding employment-based “green cards,” Biden intends to eliminate the 7% per-country allotment of green cards each year. The per-country limit was designed to prevent one country from dominating the flow of employment-based immigration to the United States. This per-country limit severely impacts countries like India, where there is a decade-long waiting period for Indian nationals intending to become permanent residents while working in the U.S. on an H-1B visa. The argument for now removing the per-country limit is that it has prevented U.S. employers from retaining the employees they need to remain competitive.
Biden’s proposal would also exempt individuals with doctoral degrees in STEM fields from U.S. universities from annual caps on H-1B visas. This would have a two-fold effect. First, it would increase the number of foreign students applying to U.S. universities, which would provide much needed financial support for colleges and universities. Second, it would encourage the most intellectually advanced foreign nationals to come to work in the United States.
All of these changes, which will likely lead to an overall increase in the accessibility of H-1B visas, is good news for the many companies who are becoming more digitized as a side-effect of the COVID-19 pandemic. IT workers make up the largest percentage of H-1B visas, and they are in higher demand as businesses increase their dependence on technology due to an increase in employees working from home.
As the new Biden Administration continues to change the employment-based immigration domain, we will continue to monitor and report on impacts to employers. Employers should remain aware of this rapidly evolving area of Federal law and those intending to pursue employment-based visas should remain hopeful that increased access to foreign workers may be on the horizon.