The House Democrats introduced the U.S. Citizenship Act of 2021 on February 18, formally outlining President Biden’s plans for comprehensive immigration reform. While ILBSG has reported on several aspects of the immigration bill over the past few weeks, many clients may be wondering how the bill will specifically impact H-1B visas. We now have those answers.

Overwhelmingly, the bill seeks to make the business-immigration landscape easier as it includes many beneficial changes. For instance, the bill includes a program in which foreign nationals with doctorate degrees in STEM fields can obtain green cards without being subject to a numerical limitation. Further, the bill seeks to increase the number of available employment-based visas each year, and several other provisions seek to reduce the current green card backlogs. Importantly, the bill looks to codify employment authorization for H-4 holders, meaning the future of H-4 EADs would no longer be uncertain. Finally, the bill contains provisions that seek to prevent certain children of H-1B workers from aging out during the green card process.

However, there are some changes included which would not be beneficial for the H-1B program. In particular, the bill seeks to codify USCIS’ recent Final Rule making the H-1B visas cap wage based, rather than a random lottery. This is an important development as it signals President Biden is in favor of the wage-based system set to go into effect on 12/31/2021. While a lot could happen between now and then, the Final Rule has already been published in the Federal Register and can go into effect with or without this immigration bill. However, the fact that this change is included in the immigration bill does give us a clear idea of how the current administration views the rule, meaning it is unlikely that President Biden will take action to prevent it from going into effect.

As ILBSG has emphasized over the last few months, a wage-based system will unfairly impact small businesses. The Final Rule which is set to go into effect on 12/31/2021 will mean that those registering with Level IV wages will be selected first, before moving on to the Level III registrations, then to Level II, and so on. If USCIS received enough Level IV registrations to fill the H-1B cap, no other wage levels would even be considered. While the intent is to make sure that H-1B visas are allocated to only the best and brightest and ensure that foreign labor does not hurt U.S. workers or drive wages down, the fact remains that the H-1B program was specifically designed for entry-level, highly skilled workers. Under a wage-based system, there will be no room for entry-level employees.

It is unlikely the immigration bill will pass as it is, so a lot could still change. Further, there is still plenty of time between now and the end of the year, meaning we could see modifications or delays to the Final Rule implementing the wage-based system. Only time will tell.

In the meantime, ILBSG encourages all clients to take advantage of the upcoming H-1B cap, since this year will still be a random lottery. Since we do not know what next year’s cap will look like, now is the time to file.

ILBSG is currently accepting registrations on the MyEsq portal. Registration begins on March 9. If you have any questions about the upcoming H-1B cap, please contact an ILBSG attorney today.

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