Will It Be Easier for Foreign Nationals to Seek a H-1B Visa Under the Biden Administration?

The Trump administration was tough on foreign national H-1B seekers. The Biden administration has pledged to make the United States an attractive destination for H-1B foreign nationals.

The H-1B visa is one of the most popular work visas for skilled foreign nationals. In April 2017, the Trump administration issued an Executive Order “Buy American Hire American” (BAHA) to protect US workers. In line with the BAHA executive order below are some recent changes.

  • The Department of Labor (DOL) introduced an interim final rule (IFR) changing the computation of prevailing wage levels, resulting in higher prevailing wages for all occupations for each OES-based wage level. The IFR became effective upon publication on October 8, 2020. Employers that rely on labor conditions applications (LCAs) or prevailing wage determinations (PWDs) saw an immediate increase to the wages associates with each wage level. The IFR effectively increased the “required wage” associated with H-1B, H-1B1, and E-3 benefit requests, as the “required” wage is defined as the higher of the actual wage and the prevailing wage.
  • The United States Citizenship and Immigration Services (USCIS) issued an IFR narrowing the definition of “specialty occupation” and employer-employee relationship. The USCIS IFR was published on October 8, 2020 and will be effective 60 days after publication (December 7, 2020).
  • The DOL issued proposed regulations on October 21, 2020 that would eliminate the use of a B-1 visa as a substitute for an H-1B visa. “B–1 (Business Visitor) in lieu of H” policy allowed a business visitor to come to the United States as an employee of and on behalf of a foreign employer in connection with an international transaction that primarily benefits the foreign employer. In limited circumstances, the business visitor could also perform local, productive work. The Department of State is accepting comments about the proposed regulations through December 21, 2020.
  • The Department of Homeland Security (DHS) is planning to allocate H-1B visas based on wage levels instead of the lottery system starting April 2021. The proposed rule will end the random selection process used in the current H-1B lottery system and replace it with one that prioritizes H-1B registrations based on wage-levels. If this rule is enacted, the USCIS will rank and select the H-1B lottery registrations received on the basis of the highest OES wage level that the offered wage would equal or exceed for the relevant SOC code.
  • Amongst the coronavirus pandemic, the Trump administration issued a travel ban for suspending the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. Subsequently, some a preliminary injunction was issued, which allowed DOS to make emergency appointments for foreign nationals seeking H-1B, L-1, H-2B and most J-1 non-immigrant visas.

What the Biden administration is proposing:

  • Expand the number of H-1B visas. Currently, the H-1B visas is 85,000 which includes 20,000 reserved for foreign nationals with advanced degrees from US colleges.
  • Curb exploitation of foreign national workers by ensuring that employers cannot hire below market rate or go outside the immigration system to find workers.
  • Create a new visa category to allow cities/counties to seek higher levels of immigrants to support economic growth
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