 "Getting H-1B visas could become tougher for some foreigners. File Photo/Reuters")
The United States may make obtaining some H-1B visas difficult for foreigners with lower income. The Donald Trump administration is reportedly planning to introduce a new rule to change or completely end the H-1B visa lottery.
The US government could start granting H-1B visas on the basis of “weighted selection process”, which would prefer individuals with higher salaries. This could put international students and early-career professionals at a disadvantage.
Let’s take a closer look.
What’s the proposed rule?
The Trump administration is considering a new rule for allotting H-1B visas. It is planning to replace the H-1B cap lottery process with a “weighted selection process”.
Last week, the Department of Homeland Security (DHS) submitted a filing to the Office of Information and Regulatory Affairs (OIRA), saying it was mulling bringing the “weighted selection process” for applicants under the capped part of the H-1B visa system.
The H-1B visas for high-skilled foreign workers are capped at 85,000 per year.
Currently, these visas are granted through a lottery system — a random selection process — when registrations surpass the annual limit of 65,000, plus a 20,000 exemption for individuals with an advanced degree from a US university.
Under the proposed rule titled “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions”, weights could be given based on the salary received by the foreign beneficiary, who is being sponsored for the H-1B visa by their American employer.
After the rule is reviewed by OIRA, it will be published in the Federal Register. This process could take many months and there is also likely to be a window for public comments before the final rule is implemented, as per a Times of India (TOI) report.
“But they are moving fast, so that could happen within the calendar year,” Doug Rand, a former DHS official, told the newspaper.
When Trump changed H-1B selection rule in 2021
Even during his first term, Trump attempted to modify the selection process for some H-1B visas.
On January 8, 2021, the DHS published a final rule to change the H-1B cap lottery process, replacing it with a wage-based selection process.
“USCIS [US Citizenship and Immigration Services] will rank and select the petitions received on the basis of the highest Occupational Employment Statistics wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I,” the DHS said about the selection process.
Under this, senior employees who get higher salaries – Level 3 (experienced) and Level 4 (fully competent) — would have been preferred for H-1B cap visas over individuals starting their careers who are generally paid at Level 1 and Level 2.
The rule was ultimately not implemented by the Biden administration.
How salary-based selection process hurts freshers
If the US junks the lottery system for H-1B visa cap, it could hurt the foreign students and early-career professionals.
According to a 2021 National Foundation for American Policy (NFAP) analysis, an international student has 54 per cent more chance to get an H-1B petition under the current H-1B lottery (or registration) system than if the H-1B lottery were eliminated.
In case the weighting rule is implemented, USCIS would still conduct a lottery. However, if it is solely based on salary, an H-1B applicant with a proposed annual salary of $200,000 would be twice as likely to be selected as an applicant who earns $100,000 every year, as per a Forbes report.
The other way to implement the proposed immigration policy could be that employees paid at the Level 4 wage get four chances to be selected, a Level 3 applicant three chances, a Level 2 registrant two chances and a Level 1 registrant one chance.
“Weighting would suggest giving a higher probability of being selected for certain applicants, but everyone would still have some chance at being selected,” economist Mark Regets, a senior fellow at NFAP, told Forbes.
Any change to the selection process for H-1B visas will significantly impact Indians, who are the largest beneficiaries of the programme.
Indian nationals have accounted for more than 70 per cent of all approved H-1B petitions since 2015, as per the US government data.
In the fiscal ending September 2023, Indians made up 68,825 (58 per cent) of initial employment visas and 2.10 lakh (79 per cent) of extensions.
Educational experts told TOI that usually overseas students transitioning to H-1B visas after completing their optional practical training are recruited at entry levels. The proposed rule will also hurt at least 11 occupations, including physicians, internists, paediatricians, dentists and computer and information systems managers, as per NFAP.
Connor O’Brien, a researcher at the Economic Innovation Group, told Newsweek: “The details of the rule and how it is implemented will matter a lot. But eliminating the H-1B lottery in favour of a system that prioritises higher earners first is a no-brainer.
“The H-1B is the primary way through which we bring in skilled immigrants and we only have 85,000 visas to give away each year. Giving away these visas randomly is an enormous, missed opportunity to attract truly scarce talent that would benefit American businesses and communities.”
If passed, the new H-1B selection process could be implemented by March 2026, before the FY 2027 H-1B cap selection.
The details of the proposed rule remain unclear, as of now.
With inputs from agencies