In a move set to challenge the incoming administration, President Joe Biden has enacted business-friendly updates to the H-1B visa program that will take effect just four days before President-elect Donald Trump takes office. While Trump has yet to indicate his stance, rolling back these changes could prove difficult due to the lengthy federal rulemaking process.
The proposed H-1B rule changes, released Wednesday and set to take effect on Jan. 17, provide employers greater certainty about renewing visas and more flexibility in filling jobs. Previously, employers have had to show a direct connection between a visa candidate's academic degree and the job for which the candidate is being hired. This revision loosens that requirement, asking for only a logical connection between the degree and job responsibilities. The intent is to make it easier to fill jobs that require a combination of skills, such as AI work.
The H-1B rule changes also ensure that U.S. Citizenship and Immigration Services (USCIS) gives deference to previously approved visa petitions, especially when the facts -- job duties, titles and locations -- are mostly the same.
"Deference to previous decisions is probably the most important thing for rule of law and employers," said Grant Sovern, an immigration attorney at Quarles & Brady. It will provide more certainty to employers when renewing visas, he said.
Deference to previous [H-1B] decisions is probably the most important thing for rule of law and employers.
Grant SovernImmigration attorney, Quarles & Brady
The changes create clear regulations, according to Sovern. Prior to this, USCIS used policy memos and traditions to make decisions. Formal regulations around H-1B visas are important because the first Trump administration "previously tried to turn back everything it could," he said.
Trump might complicate the H-1B process
How the incoming Trump administration will handle the H-1B visa program is a wild card. Immigration attorneys are worried that the administration will increase the rate of H-1B visa denials and also begin demanding a "request for evidence" to support visa petitions, something that increases the expense for employers.
But once the H-1B rule changes become final, it will be difficult for the Trump administration to immediately make changes.
Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association, said that "in order for the new administration to undo the regulation, it would have to go through the rulemaking process to replace it."
Dalal-Dheini believes the rule change will be governing the distribution of next year's H-1B visas. "It's going to be very difficult for them to undo it," she said.
When Trump returns to the White House, he will have a range of options. With Congress fully in Republican hands, Trump can seek wholesale reform of the H-1B visa program. He previously supported a wage-based distribution of visas to replace the random lottery system. Trump's wage-based approach, where businesses that pay the highest salaries for a role are first in line for visas, was scheduled to take effect after Biden took office in 2021. Biden was able to stop the change from going through.
Patrick Thibodeau is an editor at large for TechTarget Editorial who covers HCM and ERP technologies. He's worked for more than two decades as an enterprise IT reporter.
