A Tale of Two Transitions

Before he left office in January 2021, President Trump issued a regulation to end the H-1B visa lottery and replace it with a system that awarded the controversial visas based on salaries (highest to lowest). The aim was to make it harder to use the visa program to bring in entry level workers. H-1B visas are classified under four different wage categories: Level 1 (“Entry Level”), Level 2 (“Qualified”), Level 3 (“Experienced”) and Level 4 (“Advanced”). The majority of H-1B workers fall into the two lower categories, which pay 17%-34% less than the prevailing local wage. In other words, the H-1B visa displaces Americans with underpaid foreign workers.

The Trump rule was expected to eliminate visas at the lowest wage level, and considerably reduce the number in the second lowest category. By itself, the regulation would not solve all of the problems with the program, but it would have been a significant improvement.

The U.S. Chamber of Commerce challenged the regulation in court, which delayed its implementation and pushed its fate into the incoming Biden administration’s hands. President Biden withdrew Trump’s rule in December of 2021. The issue didn’t go away, however, as current and former H-1B holders came forward to denounce the program as “a big scam” for cheap labor. 

H-1B workers aren’t the only vocal critics.

Seven years after Jesse Jackson criticized Silicon Valley for its “Magic Kingdom” mentality for bringing in H-1B workers while ignoring qualified American women and minorities, journalist Rachel Rosenthal covered the growing frustration in “Biden Is Caught Between Big Tech and Black Voters”:

“Although a steady flow of international hires might seem to check the right boxes, 64% of H-1B petitions approved in the 2021 fiscal year were filed on behalf of Indian or Chinese men. ‘Many [foreign-born workers] are counted as underrepresented minorities [to] help fill open gaps in the STEM workforce but do not serve to increase domestic ‘minority’ representation in STEM,’ according to a National Academies of Sciences, Engineering and Medicine report from 2019.”

Just as NumbersUSA’s founder, Roy Beck, wrote in Back of the Hiring Line, “Employers throughout STEM fields have preferred to meet their diversity goals with non-White professionals from other countries rather than hiring African Americans.”

Of course, the H-1B program displaces Americans of all races. It was supposedly created in the Immigration Act of 1990 to fill short-term labor shortages in the rapidly expanding tech industry, just until the U.S. education system could catch up enough to provide the necessary domestic labor. Thirty five years later, over 600,000 H-1B workers are in the U.S. workforce while U.S. colleges and universities graduate 400,000 STEM grads every year. Fewer than half of American STEM grads will find careers in their fields, but the H-1B lobby insists the Americans just aren’t smart enough.

Biden’s transition back to Trump will be different.

Like his predecessor (and successor), Biden also issued a last-minute regulation, but his was to increase H-1B visas (as well as H-2 visas for blue collar jobs) and extend the period that student visa holders can work under the Optional Practical Training program (yes, the one that gives discounts to employers who don’t hire Americans). Elizabeth Jacobs at the Center for Immigration Studies has all of the details.

Unlike Trump’s rule, Biden’s will go into effect before the presidential transition, which means it will be more difficult for the Trump administration to roll it back, even if it wants to.

The outlook for reversing Biden’s rule became even more murky a week later, when the guestworker issue blew up on Twitter/X. Several prominent Trump supporters are arguing for increasing H-1B visas even further, a position contrary to the first Trump administration’s. Trump himself, in response to a reporter’s question, indicated support for H-1Bs. 

Just as there were internal debates about the border during the Biden administration, the Trump administration will likely be divided on the question of guest worker visas and overall immigration numbers.