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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. 

Salary is a proxy for need

The Trump administration's plan "encourages companies to pay their H-1B workers more than the average American worker," Harrison said. "Salary is a great proxy for determining if the company really needs the worker." The IEEE-USA represents some 180,000 technology professionals and has long been a critic of the visa program. 

Making H-1B workers more expensive is a Trump administration goal. In October, Trump changed H-1B salary rules, raising wages considerably. Its broad goal is to make visa holders a less attractive option to stimulate domestic hiring. 

But in a complaint filed last month in the U.S. District Court in California, a wide-ranging coalition of business groups argued that the wage changes raise salaries to unreasonable levels. A software developer in the San Jose area, for instance, goes from a salary of $70,600 to a salary of $137,400 under the administration's wage changes. 

"This is not a wage increase designed to protect workers," the lawsuit argues, but it was instead designed "to destroy the H-1B program." It is seeking an injunction. 

Roger Tsai, an immigration attorney at Holland & Hart LLP in Denver, said wages for visa holders in the firm's Mountain Zone geography are rising 30% to 60% because of the administration's prevailing rule change. 

Similar to other immigration experts, Tsai said he doesn't know what a Biden administration will bring.

But the Trump administration wage hike is giving employers pause. "They're definitely thinking twice" about using the H-1B program, according to Tsai. 

Trump could change rules up to last minute

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. 

Under Trump's distribution plan, a visa-holding physician paid at a level 2 prevailing wage for a physician may earn more than a system administrator paid the administrator's level 3 prevailing wage, for instance. But the system administrator ranks at a higher level in the visa distribution system. The potential complaint is that more valuable and higher-paying jobs may lose a visa to other types of jobs that have higher demand but aren't necessarily as valuable to the economy.  

The Trump administration claims the ranking system will help U.S. workers overall. 

Employers "are replacing qualified and skilled U.S. workers with relatively lower-skilled H-1B workers," the Trump administration said in arguing for the lottery replacement. "U.S. companies such as The Walt Disney Company, Hewlett-Packard, University of California San Francisco, Southern California Edison … have reportedly laid off their qualified U.S. workers and replaced them with H-1B workers," it said, in part. 

Will Biden go easier on the H-1B program?

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.

The Biden administration can have an enormous impact just by changing how they administer the rules.
Peter Bendor-SamuelFounder and CEO, Everest Group

"It's very clear that the Trump administration wants to choke off as much immigration as possible," Bendor-Samuel said. "The Biden administration is likely to take a more constructive or at least pro-immigration role." 

The Trump administration has made it difficult to get visas, imposing more paperwork requirements and delays, Bendor-Samuel said. 

"The Biden administration can have an enormous impact just by changing how they administer the rules," he said. 

If Biden is more accommodating to the H-1B work visa program, people in the immigration field have no idea as to what extent, said Richard Burke, president and CEO at Envoy Global Inc., an immigration and immigration management services firm in Chicago. "Is it going to be 10% more accommodating, 50% or 100%?" he asked.

The answers to some of these questions may arrive quickly. The 2021 lottery distribution is set for April 1, 2021, just 71 days after a Biden administration will take office.

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