Main image of article Biden Regulatory Agenda Hints at Big H-1B Changes on the Way

How will the Biden administration adjust the H-1B? In the eight months since Biden’s inauguration, critics and advocates of the visa have openly debated that question.

Biden’s first regulatory agenda, published this summer, offers some faint clues. The agenda states the administration’s intention to “modernize” H-1B requirements, although details remain vague. A rule filed by the Department of Homeland Security reads:

“The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to "employer-employee relationship;" implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers and H-1B petitions, where there is indicia of fraud; provide flexibility on the employment start date listed on the petition (in limited circumstances); address "cap-gap" issues; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

There’s quite a lot to unpack there, but the main takeaway is that the Department of Homeland Security could change much about the visa, from how the federal government determines abuse to how companies can adjust their applications.

It’s helpful to remember that the Trump administration also placed H-1B applications under more stringent review, which led to a marked boost in the visa’s denial rate between 2016 and 2020. That’s in addition to an adjustment in visa fees, which potentially made applications spectacularly expensive for the consultancies and business-services firms that apply for thousands of H-1B workers every year (and then subcontract those workers to other companies). 

Near the end of Trump’s term, the Department of Labor (DOL) proposed a Final Rule designed to reform the H-1B system from the ground up, including a stricter application review. In January 2021, Trump’s Department of Homeland Security (DHS) also issued a Final Rule detailing the ranking and selection of H-1B registrations based on wage levels. The latter rule’s implementation, originally slated for March, was pushed to December 31, 2021

While you might think the Biden administration would reflexively roll back as many of Trump’s rules and orders as it possibly could, Department of Justice lawyers are currently arguing to preserve that Homeland Security rule about H-1B wages. In a recent legal filing in U.S. District Court (Northern District of California), those lawyers argue that wage-based selection will align as much with the law as the current, randomized lottery: “In deciding how to order simultaneous or nearly simultaneous submissions, DHS turned to an important purpose of the H-1B visa program and reasonably determined that a wage-level-based selection process will implement that purpose of the statute and that nothing in the statute requires random selection.”

Aside from this particular battle over wage-based selection (and Biden’s U.S. Citizenship Act of 2021, which would prioritize visas based on wages, but needs to pass Congress first), the Biden administration hasn’t publicly revealed much of its thinking about H-1Bs. If this regulatory agenda is any indication, though, the administration could eventually push some big reforms—which would have a sizable impact on everything from applications to fraud. Stay tuned.