Lawsuit against the Biden administration over H-1B visas

Five non-profit organizations recently filed a lawsuit against the Biden administration for failing to remove a proposal from the previous administration (Donald Trump/2017-2021) related to business immigration, more specifically to H-1B visas.

The H-1B visa program is available to eligible local employers to hire highly skilled foreign workers in sectors such as science, technology, engineering, and research. This program has always contributed greatly to the socioeconomic growth and development of American or US-based companies, but former President Trump never fully agreed with this benefit.

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What was Trump’s proposal regarding H-1B visas?

The Trump administration repeatedly argued that foreign workers often take opportunities away from American workers by accepting lower wages through programs like the H-1B visa. Adding to that, Trump stated that certain local companies also take advantage of business immigration programs to hire less expensive foreign workforce; a premise contradicted multiple times by experts and researchers.

Therefore, to protect American workers and encourage companies to hire local workforce, the Trump administration proposed in October 2020 to replace the H-1B visa aleatory selection system with a wage-based selection process.

In January 2021, a week before former President Trump left office, his administration published the Final Rule in the Federal Register, which would take effect 60 days from date of publication. However, the Biden administration intervened shortly after.

How does the H-1B visa selection system work?

When the number of H-1B visa applications exceeds the annual limit set by the government, which happens almost every year, the USCIS (US Citizenship and Immigration Services) uses a selection system called the H-1B Visa Lottery.

This lottery allows the USCIS to randomly choose eligible applications to complete the annual H-1B visa limit (65,000). It is important to clarify that apart from this cap, the USCIS reserves 20,000 H-1B visas for foreigners with advanced degrees. Thus, the country issues a total of 85,000 H-1B visas annually.

The Trump administration planned to remove the H-1B Visa Lottery to be able to implement a selection system that would choose eligible applications based on wages, from highest to lowest.

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The Biden administration did not remove Trump’s proposal

President Joe Biden took office on January 20, 2021, and has since removed multiple restrictions and rules implemented by the Trump administration on the immigration system.

However, regarding Trump’s wage-based selection system, the Biden administration postponed its implementation, ordered a comprehensive review of the proposal, and stated that it would make a decision by the end of 2021. Thus, there is still a possibility that the new administration will keep Trump’s proposal in the future.

The plaintiffs’ opinion regarding Biden’s decision

Plaintiffs involved in the case openly state that a wage-based H-1B visa selection system “will have a deleterious impact on small business, start-ups, non-profits, rurally located business and other industries that rely on foreign highly skilled workers, but who are not able to compensate workers at the highest wage level”.

Adding to that, they state that it would be more difficult for foreign students to seek job opportunities after completing their studies, which would also affect and delay the US’ technological development.

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