Two senators seek Trump’s wage-based H-1B selection

Senators Chuck Grassley and Dick Durbin.

Plea from Senators Dick Durbin and Chuck Grassley comes days before initial registration for H-1B visa lottery opens from March 9 to 25.

Two influential senators have urged the Biden administration to “retain and expeditiously implement” the wage-based H-1B selection rule introduced by former President Donald Trump days before his exit instead of the old lottery system.

Democrat Dick Durbin and Republican Chuck Grassley, chair and ranking member of the Senate Judiciary Committee respectively, made the demand in a letter to Homeland Security Secretary Alejandro Mayorkas Wednesday.

On Feb. 4, US Citizenship and Immigration Services (USCIS) had announced that it will continue the old system of H-1B visa selection for high-skilled foreign workers by lottery until the yearend instead of switching to wage-based selection from March 9.

RELATED: H-1B visa lottery system to continue until year end (February 5, 2021)

“We were disappointed to learn of this delay, as the H-1B visa program is greatly in need of reform,” Durbin and Grassley wrote just a few days before the opening of the registration window for the H-1B cap filing season from March 9 to 25.

Indian tech professionals are the biggest beneficiaries of the current lottery system getting about two thirds of the 85,000 H-1B visas issued annually.

“The practical effect of this delay is that outsourcing companies will continue to game the lottery system and secure thousands of new H-1B visas for FY 2022 since the H-1B filing season begins in a few weeks,” Durbin and Grassley wrote.

“This will facilitate these companies’ efforts to continue outsourcing American jobs,” they wrote.

“We believe the H-1B visa program must be reformed to stop abuse. Implementing a reasonable allocation of visas as the H-1B selection rule would do is a meaningful step toward reform to protect American workers.  We urge you to expeditiously implement the rule.”

RELATED: USCIS replaces H-1B lottery with wage-based selection (January 8, 2021)

The Trump rule, Durbin and Grassley wrote “will protect American workers by ensuring that visas are first issued to employers offering the highest wages in the area of employment before being allocated to other petitioners,”

“This rule would revamp the annual distribution of H-1B visas, which is currently done by random lottery, to instead prioritize the highest-paid workers,” they wrote.

“This would make it much more difficult for companies that specialize in outsourcing American jobs to game the allocation of H-1B visas, which currently results in these companies obtaining tens of thousands of additional visas every year.

Durbin and Grassley have been long-time advocates for H-1B reform and first introduced legislation to reform this visa program in 2007, they said in a media release.

RELATED: Trump administration hikes wages for H-1B, foreign worker programs (January 13, 2021)

Titled, “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions,” the new rule was published on Jan. 8, just two weeks before Trump’s exit.

Durbin and Grassley cited a May 4, 2020 analysis by the Economic Policy Institute, saying “a majority of H-1B employers use the visa program to pay migrant workers below-market wages, and half of the top 30 H-1B employers use an outsourcing business model.”

“This is simply unacceptable and does not reflect how Congress intended the H-1B program to work.”

“While Congress should pass legislation to overhaul the H-1B visa program, DHS and the Department of Labor should use their robust regulatory authority to reform the H-1B program to protect American workers from displacement and migrant workers from exploitation,” Durbin and Grassley wrote.

READ: Trump goes ahead with H-1B, other immigration curbs before exit (December 14, 2020)

“Establishing an equitable distribution of new visas is a key starting point to ensuring that the H-1B visa program is not used to lower wages and displace American workers.”

“The annual H-1B visa lottery has been abused for years by outsourcing companies,” Durbin and Grassley suggested.

“Employers offering high wages to international graduates of American universities often lose out in the H-1B lottery, while thousands of new H-1B visas are issued each year to outsourcing companies offering below-market wages and seeking to offshore American jobs.”

“The H-1B selection rule is a reasonable regulatory reform that will improve the H-1B visa program for American and immigrant workers, and American employers,” Durbin and Grassley wrote.

The senators said they “disagree with the decision to institute a lengthy delay to the effective date of the H-1B selection rule, and we urge DHS to retain and implement the rule as soon as possible.

Ideally, this should be done “before the upcoming April 2021 lottery – so that outsourcing companies cannot continue to game the system at the expense of American workers, as they have done for far too long.”

“If DHS finds that the H-1B selection rule needs to be further refined to avoid unintended consequences, we ask that you quickly identify and make these changes to improve the rule,” Durbin and Grassley wrote.


Supporters of bill to remove green card country limit pressure Senator Durbin (December 4, 2019)

Hundreds stuck in Green Card backlog stage protest in front of restaurant hosting Durbin event (November 4, 2019)

Indian H-1B holders stuck in Green Card limbo send Diwali greetings to S.386 opponent Sen. Dick Durbin (October 27, 2019)

Sen. Dick Durbin proposes new immigration bill in place of S.386 (October 17, 2019)

Chuck Grassley again denounces H-1B visa program (January 18, 2018)

Senator Grassley raises concerns over misuse of O visa by potential H-1B applicants (July 20, 2017)

Grassley, Durbin demand more teeth for Labor Department to investigate H-1B visa frauds and abuses (May 8, 2017)

Republican Sen. Chuck Grassley wants to stop issuing Green Cards, visas to India (June 28, 2016)


One Comment

  1. Jake Leone

    This is a good and needed change, too bad Biden is delaying (or removing) it. If this change were implemented, we would see fewer H-1b petitiions because employers will self-select, when they know they don’t have a good chance of winning an H-1b visa. Offshore Outsourcing companies have a visa application machine, and they put in most of the requests and as a result they win more than half the H-1b visas.

    BTW, on the net, two immigration lawyers I had debated with on the net are unanimous, that keeping the Lottery is the Right Thing to do. Lawyers have huge sway over government. But we have to recognize, immigration lawyers like the random chance lottery, because it doubles the number of H-1b petitions (and so their client base and earnings). There is one thing that is true, corporations and immigration lawyers d9n’t tell the truth about STEM/IT worker availability to the public or the press. The most trustworthy document we have, so far, is the DOJ indictment of Facebook, which by Facebook’s own admission (under threat of felony obstruction if they lied), Facebook finds 30x more qualified LOCAL STEM/IT candidates than it can hire.

    Silicon Valley companies typically have but one, vetted, candidate, per position. They put in their single H-1b application, for that one worker, BUT because of the gaming by the Offshore Outsourcing companies, Silicon Valley companies have a 1 in 4 chance of winning a visa. Many OPT workers never graduate to an H-1b visa, unless they too play the game of working with multiple employers.

    This Executive Order should have have been rescinded, and it has only a small chance of passage in some other bill. It will take a lot of lobbying and campaign contributions to see that amendment through.

    The only reason for rescinding it (delaying or diverting it to a bill) would be to use it as a way to garner campaign support or as a bargaining chip. Yet it is the single most important change we can make to the H-1b program, without having to legislate.

    I have no reason to advocate for this change, other than I know it is the right thing to do. With the current, foolish lottery, my company can’t keep many of the OPT workers it hires. As a result, they are forced to hire new freshers, to replace OPT workers that leave. I have a lot of domain experience, to find someone who can compete with me, make me expendable, it will take a high six figure salary. So changing to a salary based allocation reduces my job security.

    So if Biden just keeps the foolish lottery, well that doesn’t hurt me.

    AND Because half the H-1b visas will go to Offshore Outsourcing companies. Offshore Outsourcing companies look for departments that are filled with well scripted positions, like HR and Accounting. My job requires a lot of custom design and domain experience you just can’t learn in college. There are experts around the world, who are making relatively good money locally, and would be willing to relocate the U.S. Paying one of them 200k/year, you could attract them to an H-1b visa job. So if we changed from a lottery to a salary based allocation, the chances are good my company could find someone who would really make me uncomfortable at work.

    Biden delayed this either because of a non-thinking rage/spite about anything-Trump. Or (more likely) he put this into an amendment in an immigration bill, to see who will bid high enough to keep it, or to remove it. Because literally, keeping it would be an economic boost for the economy. It would force Offshore Outsourcing companies to hire locally (this would raise prices for their services), and result in at least some local jobs. But, more importantly, it would allow Silicon Valley to have a very good chance of getting all (or most, sorry Oracle) of all the H-1b visas they request.

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