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H-1B Program under Biden-Harris Administration

A federal court recently struck down Interim Final Rules promulgated by the U.S. Department of Homeland Security and the U.S. Department of Labor (DOL).

In October 2020, DHS and the DOL issued final rules that would materially change the H-1B program. The DHS’s “Strengthening the H-1B Nonimmigrant Visa Classification Program” Interim Final Rule revised the definition of specialty occupation, employer-employee relationships, and limited the length of H-1B approvals to only one year for work performed at third-party worksites. The “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” Interim Final Rule by the DOL significantly increased the wages U.S. employers must pay to H-1B workers. On December 1, 2020, the U.S. District Court for the Northern District of California overturned these rules for violating the Administrative Procedures Act (APA), which required a public notice and comment period before the rules can be finalized.

On November 2, 2020, the DHS also published a proposed rule that seeks to replace the current H-1B selection process with a system that gives preferential treatment to higher-paying positions. The proposed rule is expected to face similar challenges under the APA.

The Biden administration does not oppose the wage-based H-1B selection process.

According to Biden’s policies outlined on his website, the administration believes that an “immigration system that crowds out high-skilled workers in favor of only entry level wages and skills threaten American innovation and competitiveness.” The administration will “work with congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages.” Biden’s emphasis on collaboration with congress suggests the administration will seek to make these changes through the legislative process. This will be challenging should the government remain divided. While acknowledging the possibility for a shift towards a wage-based allocation process, the Biden administration also expressed its support to increase the total number of H-1B visas available annually.

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