Biden to Delay Trump’s Era Rule on H-1B And Continue Lottery System Until December 2021

The Biden administration has stated that by continuing with the lottery system until December 31, 2021, it is delaying the H-1B policy of the Trump administration on the allocation of popular foreign work visas to give the immigration agency more time to develop, test and implement the changes to the registration system.

The US Citizenship and Immigration Services also announced on January 7 that it would do away with the traditional lottery system when deciding on successful H-1B visa applicants.

The H-1B visa is described as a non-immigrant visa that enables U.S. companies to hire foreign workers who require theoretical or technical expertise in specialist occupations. Technology companies rely on it to hire tens of thousands of staff from India and China every year.

The USCIS mentioned it would prioritise wages to protect American workers’ economic interests and better ensure that the temporary employment program benefits the most highly skilled foreign workers.

The USCIS said in a statement on Thursday that it is delaying the effective date of the rule until December 31, 2021. On March 9, the Trump-era law was scheduled to go into effect.

“To give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to December 31, 2021,” it mentioned.

This may be because by the time the initial registration period will be available for the upcoming fiscal year (FY) 2022 H-1B cap season, the USCIS said, it will not have adequate time to complete system development, thoroughly test the modifications, train staff and conduct public outreach needed to ensure effective and orderly implementation of the H1B Selection Final Rule.

The slowdown will also give the USCIS more time to train employees and carry out public outreach and give stakeholders time to adapt to the new rule. The USCIS will apply the recent regulations (random selection) for the upcoming H-1B cap season to any registration period that opens before December 31, 2021, the statement said.

The USCIS argued on January 7 that eliminating the lottery system and replacing it with a merit-based and wage-based system would encourage employers to either offer higher wages or request higher-skilled positions, or both. This will further establish a more specific plan for companies to obtain staff and remain competitive globally. On 8 January, a formal federal notification was issued.

“The current random selection process of H-1B makes it difficult for companies to plan their recruitment, fails to leverage the program to compete for the best and brightest international workforce, and has mainly resulted in the annual influx of foreign labour placed at the expense of US workers in low-wage positions,” said Joseph Edlow, Deputy Director of Policy for USCIS.

In a year, the USCIS can issue a maximum of 65,000 H-1B visas. Another 20,000 H-1B visas may also be given to international students who have completed higher studies in science, technology, engineering and mathematics subjects at a US university.

A formal notification is planned to be released on February 8 in the Federal Register.

“Even during the delay, while USCIS is working through implementation-related issues, the leadership of the Department of Homeland Security (DHS) will also evaluate the January 8 rule and its related policies, as is typical of agencies at the start of a new administration,” the federal notice to be released on February 8 said.

The DHS wants to ensure the orderly and effective administration of the H-1B numerical allocations and wants to avoid disruption to the regulated public by allowing sufficient time for the changes to the H-1B registration system to be fully modified and thoroughly tested, minimising technical risks resulting from a compressed test schedule, and providing the regulated public with sufficient time to become frindly with those changes to facilitate full compliance with the new regulatory requirements.

The DHS believes that there is a need for a longer delay to remove the confusion and disparate treatment of registrants that would result if a new rule came into force for the FY 2022 numerical allocations during the initial registration period or subsequent registration and selection period, mainly if the USCIS had to open the following registration period later this year to assure full utilisation of the FY 2022 numerical allocations. Last year on 31 December, President Donald Trump extended by three months to 31 March the freeze on the most sought-after H-1B visas and other types of foreign work visas, affecting many Indian IT professionals US government-issued permits for the fiscal year 2021. Joe Biden pledged to lift the H-1B visa suspension, saying that Trump’s immigration policies are cruel.