NJBIA Presentation Reviews the current status of the H-1B Program and prospects for change in the Biden administration

The NJ Business and Industry Association, a member of the NJ Business Immigration Coalition, sponsored an online briefing on immigration policy at a meeting of its Human Resource Council on February 4. Two experienced immigration lawyers, Neil Dornbaum and Kathleen Peregoy, from the Roseland-based law firm of Connell Foley, reviewed actions taken by the Trump administration and prospects for policy changes during the Biden administration. The presenters focused a great deal of their attention on the future of the H-1B program, the program that allows U.S. businesses to temporarily employ foreign workers in specialty occupations.

The Trump administration made over 400 significant changes to immigration rules over the past four years and the coronavirus pandemic in 2020 “supersized many of these immigration policies,” Dornbaum said. “It really gave the (Trump) administration an opening in the name of public health and the concern for the growing economic crisis to finish off those last items that the administration had not been able to achieve…those include the suspension of visas to certain categories of both immigrants and nonimmigrants, effectively ending the asylum at the southern border, attacking the F-1 foreign student category… and implementing restrictive policies on the H-1B program,” Dornbaum said.

Although some Trump administration’s policies are likely to remain in effect for the foreseeable future, the Biden administration has used executive orders to make some changes, including delaying the Trump administration rule to replace the H-1B visa selection lottery with a wage-based allocation system.  The rule was finalized in the waning days of the Trump administration and would have prioritized the highest paid foreign professionals in the H-1B program temporary visa lottery, making it more difficult to for small and mid-sized companies to hire the workers they need in 2021, particularly in the STEM field.

The delay of the rule’s implementation until Dec. 31 means that the existing lottery system will remain in place for this year’s H-1B cap season that starts next month. “What’s important to note is that as the Trump administration has done, the Biden administration is undoing with these executive orders,” Peregoy said. “But what the effect is for this year with the H-1B cap coming up for March is that either everything has been suspended, it will be the subject of future rulemaking, or it’s been rolled back. “

To watch the entire online presentation, go here.