Main image of article How Will the Biden Administration Actually Tweak the H-1B Visa?

The Biden administration still wants to tweak the H-1B program.

U.S. Citizenship and Immigration Services (USCIS) has a much-delayed proposal (now scheduled for May 2023) that could adjust the definition of the H-1B employer-employee relationship, and tweak crucial guidelines such as employer site visits and F-1 students changing their status to H-1B. According to SHRM (which has a nice breakdown on the topic), the proposal will also “clarify the requirement that an amended or new H-1B visa petition be filed if there are material changes to employment, including a new worksite location.”

During the Trump administration, USCIS introduced a more stringent review policy for the visa that increased the rate of application denials; by fiscal year 2018, the H-1B denial rate spiked to 24 percent. In addition, Trump tried to reform the H-1B lottery system to favor applicants with higher salaries and advanced degrees.

After Trump left office, the Biden administration signaled that it would develop and implement its own H-1B policies, including a proposal to prioritize H-1B visas based on higher wages. As time passed, however, the new administration didn’t announce anything substantial, choosing instead to focus on other issues such as COVID-19, inflation, and international affairs. In the interim, some Trump-era immigration policies expired and the H-1B denial rate plunged to 4 percent.

The big question is what USCIS’s proposal will offer up in terms of tactical reforms. Last year, Biden’s first regulatory agenda suggested a “modernization” of H-1B requirements, but details were scarce. At around the same time, Department of Justice lawyers argued to preserve Trump-era Homeland Security rules about H-1B wages, including that wage-based selection would align as much with the law as the current, randomized lottery. Will Biden’s people ultimately push for more radical change, or just some tweaks (with the preservation of some Trump administration work)?

In the meantime, the heated debate over H-1B visas continues. Critics of the program insist that tech companies misuse the visa to import relatively cheap labor into the United States; meanwhile, advocates argue that visas are a sure way to ease the country’s tech talent shortage.