We’re just under a week away from Election Day, and it’s worth comparing the respective policies of Donald Trump and Joe Biden when it comes to the H-1B. The outcome of the election could impact this visa in strikingly different ways.
Trump and H-1B
When he began campaigning for President in 2016, Trump vowed to curb the H-1B. “We shouldn’t have it, it’s very, very bad for workers,” he said on the campaign trail. “It’s unfair to our workers and we should end it.” His campaign surrogates also took a hard line on the visa, especially former U.S. Attorney General Jeff Sessions.
After Trump was elected, though, his administration declined to push for the visa’s outright elimination, likely due to pushback from tech firms and various interest groups. Instead, U.S. Citizenship and Immigration Services (USCIS) and other government agencies launched a series of reforms, some of them significant and others relatively insubstantial. Among those proposals: Readjusting the H-1B lottery process in order to admit more applicants with advanced degrees.
USCIS also pushed aggressively to end H-4 EAD, which gives the spouses of H-1B holders the ability to work in the U.S. That initiative, along with some others, quickly ended up mired in the court system.
By 2019, Trump himself seemed to have veered from “kill H-1B” to “reform it”:
H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.— Donald J. Trump (@realDonaldTrump) January 11, 2019
The net result of the Trump administration’s actions: A rapidly declining H-1B approval rate. Business-services and consulting firms, which are regularly accused of misusing the H-1B visa to import cheaper replacements for U.S. tech workers, have been particularly hard-hit by this trend.
Earlier this year, Trump veered yet again, issuing a temporary ban on the H-1B and other visas. That ban was shot down by United States District Judge Jeffrey S. White’s ruling in National Association of Manufacturers, et al. v. U.S. Department of Homeland Security,
Even as legal pushback ended the ban, the Trump administration finally got around to launching the sweeping reform of the H-1B system that it had promised for years, with a Department of Labor (DOL) Interim Final Rule designed to reform the H-1B system from the ground up. Under the new guidelines, visa applications will undergo a stricter review, while companies will need to pay H-1B workers more.
“We’re making good on President Trump’s promise that he made to the American people nearly four years ago, to restore the integrity to the immigration system, to protect Americans from those who seek to exploit our system for personal gain, and to never forget each and every hard-working American struggling to provide for his or her family,” Ken Cuccinelli, senior official performing the duties of the director, U.S. Citizenship and Immigration Services (USCIS), said on a call with journalists.
If Trump is re-elected, what will the next four years hold for the H-1B? Certainly the reforms outlined by the DOL will go through. The big question is whether Trump will act on his occasional impulse to ban the visa altogether.
Biden and H-1B
Biden’s campaign website offers a straightforward position on work-based immigration:
“[Biden] will increase the number of visas offered for permanent, work-based immigration based on macroeconomic conditions and exempt from any cap recent graduates of PhD programs in STEM fields. And, he will support first reforming the temporary visa system for high-skill, specialty jobs to protect wages and workers, then expanding the number of visas offered and eliminating the limits on employment-based green cards by country...”
While on the campaign trail in July, Biden also stated that he would lift the Trump administration’s temporary ban on H-1B visas. “[Trump] just ended H-1B visas the rest of this year. That will not be in my administration,” he told a digital town hall meeting.
It’s unclear, however, what Biden’s campaign means by “reform.” Will he enact something similar to the DOL’s latest Interim Final Rule? Will he keep the current wage structure? Whatever decisions he makes, it could have a seismic impact on whether the H-1B denial rate stays elevated over the next four years, or whether it returns to pre-Trump patterns.