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ImmIGRATION MARCH 12, 2021 | The Indian Eye 44

President Biden must reject trump era

h-1B lottery rule and work visa travel Ban

cyrus d. mehta effect during this year’s H-1B a previous blog. In its last days, also endeavors to reduce the the COVID-19 pandemic. In
Kaitlyn Box* lottery, the rule will have a dev- the Trump administration ex- backlogs in the employment fact, large numbers of positions
astating impact on internation- tended Proclamation 10052 to and family based categories by remain open in this field and
n March 3, 2021, Dem- al students, entry-level workers, March 31, 2021. adding additional numbers and would likely go unfilled without
ocratic Senator Dick and employees of non-profits, Given the tremendous not counting dependent family highly skilled H-1B workers.
ODurbin and Republi- all of whom tend to earn mod- hardship it causes to noncit- members, among other amelio- With no cogent economic jus-
can Charles Grassley submitted est salaries. izens subject to the ban, the rative measures. However, the tification remaining to support
a letter to new DHS Secretary The Biden administration’s Biden administration ought bill had comparatively little to it, it is hoped that Proclamation
Alejandro Mayorkas urging the welcoming immigration poli- to allow Proclamation 10052 say about H-1B visas. One of 10052 soon goes the way of
DHS to implement the Trump cies have been a breath of fresh to expire on March 31 rather the few provisions that did ad- Proclamation 10014.
administration’s H-1B lottery air, but one must keep in mind than further extending it. Bet- dress the program empowers According to an earlier
final rule entitled “Modification that certain members of the ad- ter still, the Biden adminis- DHS to “issue regulations to Forbes article, “H-1B visas
of Registration Requirement ministration disfavor the H-1B tration should rescind it even establish procedures for prior- are important because they
for Petitioners Seeking to File visa program, viewing it erro- before March 31 as every day itizing such [nonimmigrant] vi- generally represent the only
Cap-Subject H-1B Petitions”, neously as a source of “cheap causes hardship to those who sas based on the wages offered practical way for high-skilled
which was published in the labor” that threatens the inter- have been adversely impacted. by employers”, which concern- foreign nationals, including in-
Federal Register on January 8, ests of U.S. workers. The H-1B The affirmative rejection of ingly echoes Trump’s H-1B ternational students, to work
2021. The final rule would re- visa indeed requires employers 10052 would symbolically also lottery rule. While the issuing long-term in the United Sates
place the current H-1B lottery to pay the higher of the prevail- demonstrate that Proclamation of more green cards to skilled and have the chance to be-
system with a preference-based ing wage or actual wage paid 10052 is based on the same xe- workers is indeed welcome and come employment-based im-
system that prioritizes workers to similarly situated workers in nophobic premise that led to absolutely necessary, there also migrants and U.S. Citizens. In
earning higher wages. Orig- the company. Distrust of the the rejection of Proclamation needs to be a complimentary short, without H-1B visas near-
inally set to go into effect on H-1B program could explain 10014. The Proclamation al- work visa program that allows ly everyone from the founders
March 9, 2021, implementation why President Biden selectively ready conflicts with several of employers to quickly employ of billion-dollar companies
of the rule was postponed until rescinded Proclamation 10014, the Biden administration’s ear- much needed skilled work- to the people responsible for
at least December 31, 2021. It but not Proclamation 10052, ly immigration policies. Proc- ers and which also provides a the vaccines and medical care
is a shame that Senator Durbin which restricts the entry of in- lamation 10052 was based on bridge to the green card. Also saving American lives would
would throw his support be- dividuals who were outside the the same tired and xenopho- another glaring lacuna in the never have been in the United
hind a clearly ultra vires regula- United States without a visa or bic narratives as Proclamation bill is the absence of the much States.”. The H-1B lottery rule,
tion of the Trump era that is de- other immigration document 10014, which Biden has already needed startup visa that would if implemented, will clearly
signed to hurt small businesses, on the effective date of the rescinded. Section 5(c)(iii) of incentivize foreign national provide a disincentive for in-
start-up companies and keep Proclamation, June 24, 2020, the Proclamation, which aims entrepreneurs to found com- ternational students to pursue
the U.S. from retaining the best and are seeking to obtain an to prevent “aliens” (a term panies in the US, which in turn higher education in the US. By
and brightest foreign students H-1B visa, among other cat- the Biden administration has could grow and create jobs for eliminating the chances of en-
from entering the U.S. work- egories. We have discussed pointedly avoided using) with Americans in addition to creat- try level students from obtain-
force. If allowed to go into Proclamation 10052 in detail in final orders of removal from ing paradigm shifting technolo- ing H-1B visas, they will pursue
obtaining eligibility to work gies. educational opportunities in
in the United States does not If the Biden administration other countries, which in turn
comport with Biden’s new pri- truly wishes to act in the best will adversely impact Amer-
orities memo, which would interest of the U.S. economy it ican universities. As AILA’s
allow such noncitizens to seek must reject the idea, whether it comment to the H-1B lottery
work authorization under an is championed by opponents of rule points out, international
order of supervision. A provi- skilled immigration on the left students comprise over 5% of
sion at Section 5(b) in Procla- or the right, that H-1B work- the total number of students
mation 10052 requires mea- ers are a threat to the United enrolled in higher education
sures to prevent noncitizens States. The administration must in the U.S., and contribute bil-
seeking admission under the seek to delay the implemen- lions of dollars to the Ameri-
EB-2 or EB-3 categories from tation of the H-1B lottery rule can economy. See “AILA and
disadvantaging U.S. work- and rescind it notwithstanding the Council Submit Comments
ers under INA 212(a)(5)(A). Senator Durbin’s support for it. Opposing USCIS Proposal to
Biden’s February 2, 2021 Exec- Indeed, Senator Durbin, team- Create Wage-Based Selection
utive Order entitled “Restoring ing up with known immigration Process for H-1Bs”, AILA
Faith in Our Legal Immigration foe Senator Grassley (who has Doc. 20120234 (Dec. 2, 2020).
Systems and Strengthening In- never repudiated Trump), has Talented foreign students have
tegration and Inclusion Efforts been a constant and irrational long flocked to U.S. universi-
for New Americans”, on the foe of the H-1B program for ties, so losing this population
other hand, lauds the contribu- over two decades and his op- would not only financially dev-
tions of immigrants to the U.S. position to the H-1B is not a astate American educational
economy and promised to re- reasoned voice and lacks cred- institutions, but also result in
m of duce barriers to naturalization. ibility. Proclamation 10052 also the loss of this source of tal-
CYRUS D. MEHTA & PARTNERS PLLC Biden’s U.S. Citizenship does not benefit U.S. workers ented entry-level workers. The
Act of 2021 also reflects a cer- by separating talented H-1B notion that foreign students
tain reluctance on the part of employees from their fami- after completing a year or two

the Biden administration to lies and preventing them from of OPT or STEM OPT will be

  address the H-1B visa program. performing critical jobs in the able to command Level 4 wag-
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­ The sweeping bill is largely United States. As Stuart An- es and thus compete for H-1B
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favorable to immigrants, fea- derson points out in a recent visas under the new rule is a
turing as its keystone a path Forbes article, many H-1B canard.
to legal status for undocu- workers are employed in the United States companies,
mented noncitizens who were computer and tech field, which too, depend on H-1B workers.
2 6th Floor present in the United States has not seen significant increas- U.S. employers have long re-

    as of January 1, 2021. The bill es in unemployment during cruited highly skilled and highly

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