What can Indian H-1B visa holders and aspirants expect as Joe Biden sworn in as 46th US President today?

A look into the possible reforms:

Addressing the green card backlog

There are about 8 lakh Indians on employment visas like H-1B visa in the green card queue, a large number of whom have been waiting to get their hands on the coveted green cards for more than a decade.

In December 2020, the US Senate had cleared the S386 bill, which eliminated the country cap for employment-based green card backlogs. It had to be passed in the House of Representatives by January 3, 2021 before it could become a law. However, it was not.

Now, this entire process has to be started afresh and the bill has to be introduced either in the Senate or House of Representatives. There is hope, given that the S386 was co-sponsored by Kamala Harris, who is set to become the first woman Vice President in the history of the US.

In all possibility, this bill is likely to gain momentum under the Biden administration.

However, this could take time. Joel Yanovich, immigration attorney, Murthy Law Firm in the US, said in an earlier interaction, “If the process starts again, it could take months, if not years. But it is impossible to say how long it would take at this point. The current bill has taken more than a year to be passed in the Senate.”

Reversing the H-1B travel ban till March 31

On June 22, 2020, the Trump administration banned the entry of skilled immigrant workers such as H-1B visa holders into the US. This was an attempt to protect American jobs on the back of the pandemic. It was extended by the Trump administration till March 31, 2021.

This impacted Indians, who are the largest beneficiaries of H-1B visas and the tech firms that employ them. Though a US court blocked the entry ban, it was applicable only to the seven plaintiff organisations that filed a lawsuit against the administration. These organisations include National Association of Manufacturers and the US Chamber of Commerce.

So the hope is that Biden would undo the executive order. Biden in his election agenda said that he would undo executive orders that the Trump administration had brought on. So this is once again a space to watch out for.

Relief for H-1B spouses, H-4 visa holders

Barack Obama in 2015 allowed the spouses of H-1B workers to work in the US by getting an Employment Authorisation Document (EAD). This benefited a large number of Indians, who accounted for about 1.06 lakh of H-4 visas as of FY19.

Doing away with H4 EAD was one of  the Trump administration’s key agendas. Between 2016 and 2020, a number of H-4 visa holders lost their jobs due to delay in administrative processing. This was in part due to the introduction of biometrics for processing the H-4 renewals in 2019.

The Biden administration is expected to address these concerns.

Three final rules that will affect H-1B visa holders

Over the last few weeks, in a last ditch attempt to push its immigration agenda, the Trump administration passed three final rules that would impact H-1B visa workers. These would impact Indian techies and IT firms, who are one of the largest beneficiaries of the visa.

1. H-1B selection based on wages instead of lottery

On January 8, 2021, the Department of Homeland Security (DHS) published the final rule that would use wages instead of the lottery system to select H-1B petitions. This is an attempt to protect American workers and prevent the abuse of the H-1B temporary visa programme by employers, USCIS Deputy Director for Policy Joseph Edlow said in a statement.

So the H-1B applicants, primarily senior executives who have higher wages, will be selected whereas the chances of fresh graduates and those with fewer years of experience getting selected are lower.

The rule will come into effect on March 9, 2021. It is not clear if it will affect the H-1B selection process for this year, which kicks off in March. Every year the US issues 85,000 fresh H-1B visas.

2. Wage hike rule by the Department of Labor

The Department of Labor (DOL) issued the revised final rule on H-1B wage hikes on January 12, 2021. The rule will come into effect mid-March 2021 and will be implemented in a phased manner spread over several months.

The agency in the revised rule has also reduced the scale of the hike. For instance, the wage hikes range between 35 percentile and 90 percentile compared to 45 percentile and 90 percent for the four H-1B wage levels.

This would significantly increase the cost of  the skilled immigrant workforce in the US, and according to immigration experts would impact the ability of companies, especially smaller ones, to access skilled labour.

The rule was first implemented on October 8, 2020 and was blocked by three US courts on grounds that the administration did not follow due procedures before implementation.

3. Strengthening H-1B visa programme

After the wage hike rule, the Department of Homeland Security (DHS) implemented a final rule to strengthen H-1B visas with the focus on employer-employee relationships.

The rule, announced on January 14, 2021, will be effective 180 days after the date of publication in the Federal Register. Under the rule, the employers of third-party H-1B workers will also have to initiate an H-1B petition for the workers.

Most IT firms initiate H-1B visas for their employees to work for their clients in the US. So far, clients did not have to take part in the H-1B application process. The new rule changes that.

Biden administration's  stand on these three rules

The Biden administration can delay the effective date for any rules that have not come into effect till the new administration takes charge by 60 days. This provision is given to the new President by the Office of Management and Budget over the last few terms to review the changes.

So it is unlikely to come into effect soon. But the administration might not do away with all the rules.

As much as the Biden administration has a pro-immigration stand, it also favours the wage-based selection of H-1B applications instead of  the lottery-system. In addition, the US-based Immigration firm Fragomen in its note on January 12 pointed out that the Biden Administration has expressed support for increasing prevailing wages under the DOL’s wage hikes for H-1B workers.

“So the Biden Administration could place the wage rule – along with other regulations finalized during the last days of the Trump Administration – on hold in order to review its contents and determine whether it should take effect,” the note added.