Biden favors green cards over H-1B work visas

The Biden administration is seeking major changes in work visa programs, proposing an expansion of the cap for employment-based green cards, but not for H-1B work visas.

President Joe Biden favors high-skilled, green card workers over H-1B work visa holders in his immigration reform effort. It is a significant change for work visas and will likely prompt a fierce fight on Capitol Hill.

The U.S. Citizenship Act of 2021 would increase green cards, or permanent employment-based work visas, from 140,000 to 170,000 annually. The act was introduced in the Senate and House Thursday.

The high-tech industry has lobbied for more green cards, but it also wants to increase the 85,000 H-1B work visas issued annually. Biden isn't giving the tech sector a visa cap increase in this bill.

Moreover, the Biden administration wants to make H-1B workers a less attractive option for employers. In the Citizenship Act, it is signaling support for a wage hike for visa workers, something former President Donald Trump wanted as well.

"This is a very major shift in policy, and the focus is on green cards," said former U.S. Rep. Bruce Morrison (D-Conn.). He was chairman of the House Subcommittee on Immigration, Refugees, and International Law that authored the Immigration Act of 1990, the bill that created the H-1B work visa.

The Biden administration's immigration reform plan was introduced in the Senate by Bob Menendez (D-N.J.) and in the House by Linda Sánchez (D-Calif.).

The bill makes substantive changes to green cards that will amplify the 30,000 green card cap increase.

One million new green cards

Morrison estimated that if adopted, the legislation "would provide approximately a million green cards immediately that would take care of virtually all of the employment-based [visa] backlog."

The Citizenship Act makes several changes in the distribution and counting of green cards.

Presently, spouses and dependents of green card applicants are counted against the 140,000 cap. That would end so that the only person counted against the green card cap would be the applicant. Doing so raises the overall number of green cards available to around 360,000 with family members counted, Morrison estimated.

The bill also has a "recapture" provision that enables the government to issue all employment-based green cards that have gone unused since 1992. That amounts to about 230,000 green cards, Morrison said. The actual number of green cards issued could more than double.

The bill also exempts STEM doctoral graduates from the annual green card cap, which might add another 20,000 issued per year.

Although he was an architect of the original bill, Morrison became a critic of the H-1B work visa program over time, especially with its use in offshore outsourcing. He also wanted green cards to give workers more freedom, testifying to Congress in 2011 that green cards give foreign workers "equal rights and autonomy in the economy."

This is a very major shift in policy, and the focus is on green cards.
Bruce MorrisonFormer U.S. Rep. (D-Conn.)

Critics of the H-1B visa program note that workers who lose their jobs may have to return to their country, thereby giving employers significant power over their H-1B workers. Immigrants on employment-based green cards are permanent residents and have the same job mobility as U.S. citizens.

"The H-1B was never intended to be a permanent holding tank," Morrison said, referring to visa workers waiting for their chance at a green card. If the tech industry lobbies for an H-1B cap increase, "that would be exactly wrong," he said.

The bill also proposes lifting the per-country caps on green cards. Today, no country can get more than 7% of the available employment-based H-1B work visas. But as many as 75% of high-skill workers are from India, and the per-country cap means they can wait for a decade or more for permanent residency.

Biden may agree with Trump on visa wages

In his final months, Trump issued a new rule to distribute H-1B visas based on wages. Those regulations would affect the 2022 visas allocated on Oct. 1, but Biden delayed implementation until December. The Citizenship Act keeps some aspects of the Trump plan alive. The bill empowers the Department of Homeland Security "to prioritize [visas] based on the wages offered by their employers."

"The Biden administration has signaled very clearly from the get-go that they support waged-based allocation for H-1B to ensure higher wages are being paid," said Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association.

Regardless, Dalal-Dheini said she doesn't see anything happening quickly with the Citizenship Act.

"We still have a very divided Congress," Dalal-Dheini said.

The IEEE-USA, which represents about 180,000 technology professionals, has supported the H-1B wage increase, and this bill would put it into law. Russell Harrison, the organization's director of government relations, called the bill a good start.

Maka Hutson, an immigration attorney at Akin Gump Strauss Hauer & Feld LLP, said there are many possible outcomes in the debate over H-1B wages.

There may be efforts to exempt nonprofits or smaller employers, particularly startups, from the wage rule, Hutson said. "There's definitely a lot to think through, and hopefully, the administration will be receptive to all the cascading effects of this type of H-1B [wage-based] selection," she said.

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