Lottery system in H-1B visa allocation to continue till December; Trump rule on backburner

The traditional lottery system for the highly sought-after H-1B visas, will continue to prevail until December 31, 2021, to give the US immigration agency more time to develop, test and implement modifications to the new registration system, mooted by the previous Trump administration.

On January 7, the US Citizenship and Immigration Services (USCIS) had announced the withdrawal of the lottery system, which was used to select successful applicants for the H-1B visas. It was to be replaced by a merit-based and wage-based system, which was scheduled to go into effect on March 9.

However, USCIS issued a statement on Thursday (January 4) stating that it is delaying the rule effective date from March 9, 2021 to December 31, 2021. The reason being given by the USCIS is that this delay will allow them more time to develop, test, and implement the modifications to the new H-1B registration system and selection process.

A formal notification is scheduled to be published in the Federal Register on February 8.

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This move by the Biden administration seems to be in line with the US President’s promise to lift the suspension on H-1B visas, saying Trump’s immigration policies are cruel.

Meanwhile, opposing this move by the Biden administration, a top Republican Senator has said it is giving Big Tech donors the gift of “cheap” foreign labour at the expense of American workers.

“Big Tech abuses the H-1B visa program to hire cheap foreign labour instead of Americans. That isn’t good for American workers, but the Biden administration is letting companies get away with it,” Senator Tom Cotton said.

In its statement, explaining the delay, the USCIS said that they required more time to complete system development, thoroughly test the modifications, train staff, conduct public outreach and give stakeholders time to adjust to the new rule. For the upcoming H-1B cap season, the USCIS will apply the current regulations (random selection) to any registration period that takes place before December 31, 2021, the statement said.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in occupations that require theoretical or technical expertise. Technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.

On January 7, the USCIS had argued that they were replacing the lottery system with a merit-based and wage-based system to incentivise employers to either offer higher salaries or petition for higher-skilled position or both. This will further help businesses to get personnel and remain globally competitive and a formal federal notification was issued on January 8.

Joseph Edlow, the USCIS Deputy Director for Policy had said that the current H-1B random selection process makes it difficult for businesses to plan their hiring. It fails to leverage the programme to compete for the best and brightest international workforce, and has predominantly resulted in the annual influx of foreign labour placed in low-wage positions at the expense of US workers, he had stated at that time.

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The USCIS can issue a maximum of 65,000 H-1B visas in a year. It can also issue another 20,000 H-1B visas to foreign students who have completed higher studies from a US university in Science, Technology, Engineering and Mathematics (STEM) subjects.

Further, during this delay in implementing the new rule, the USCIS will work through the issues associated with implementation, Department of Homeland Security (DHS) leadership will evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new administration, said the federal notification, which will be published on February 8.

The DHS went on to stress that to efficiently administer the H-1B numerical allocations and avoid disruption to the regulated public, they needed sufficient time to fully modify and thoroughly test the H1-B registration system, and minimise technical risks that result from a compressed testing schedule. They needed to provide the regulated public enough time to become familiar with changes to facilitate full compliance with the new regulatory requirements, the statement said.

Also, the delay would help to avoid the confusion and disparate treatment of registrants that would result, if a new rule took effect during the initial registration period. Or, if during a subsequent registration and selection period, for the FY 2022 numerical allocations, particularly, if the USCIS needs to open a subsequent registration period later this year to ensure full utilisation of the FY 2022 numerical allocations.

On December 31 last year, the then president Donald Trump had extended a freeze on the H-1B visas along with other types of foreign work visas by three months to March 31. This move impacted a large number of Indian IT professionals, who were issued visas by the US government for the fiscal year 2021.