shutterstock_1112894114.jpg

Presidents have a way of rolling back as many of their predecessors’ actions as possible. However, the Biden administration is currently defending an H-1B regulation originally pushed during Trump’s tenure—and if that regulation sticks around, it could have a huge impact on the visa system.

In January 2021, Trump’s Department of Homeland Security (DHS) issued a final rule that allows for the ranking and selection of H-1B registrations based on wage levels. The rule’s implementation, originally slated for March, was pushed to December 31, 2021. Then came the legal pushback, with a lawsuit alleging that prioritization based on wages was “inconsistent with the text of the Immigration and Nationality Act (INA).”

Now, in a new legal filing in U.S. District Court (Northern District of California), the U.S. Department of Justice is arguing that the final rule is valid (hat tip to Forbes for the link). “Although the INA prescribes that H-1B visas be issued ‘in the order in which petitions are filed,’ 8 U.S.C. 1184(g)(3), the INA is silent with respect to how to order such simultaneous submissions,” reads the cross motion. “If a ‘statute is silent or ambiguous with respect to the specific issue,’ the Court should defer to the agency’s interpretation so long as it is ‘based on a permissible construction of the statute.’”

The Justice Department added: “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.”

This back-and-forth over the final rule isn’t the only indication that the Biden administration is potentially amenable to the idea of issuing H-1B visas based on wages. Biden’s U.S. Citizenship Act of 2021 would prioritize visas based on wages, and give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. However, it’s unclear whether that legislation will pass in its proposed form—things have a funny way of changing as they proceed through Congress.

What’s certain is that prioritizing H-1Bs according to higher wages would fundamentally tweak the current visa system. While it wouldn’t necessarily affect those companies using the H-1B as it was originally intended (i.e., to pull in highly specialized (and presumably expensive) talent otherwise unavailable within the U.S.), it would have a seismic impact on the consulting and business-services firms that apply for thousands of H-1Bs for workers who aren’t necessarily as specialized. It would also affect use of the H-1B as a tool for hiring new graduates, whose starting salaries are often lower than the average for their specialization.