In gradually restoring the pre-Trump status quo on H1B visas, Biden will first seek to gauge the political viability of increasing temporary work visas at a time of economic uncertainty in the US.
Joe Biden’s domestic agenda currently faces the prospect of immense gridlock, owing to the Democrats’ failure to gain a decisive majority in the US Senate. Even if they win the Georgia run-offs (and thereby have the chamber tied at 50-50 with Vice President Kamala Harris wielding the tie-breaker), Democrats would most likely not spend their limited political capital on Biden’s promise to expand temporary work visas and employment-based immigration — particularly since the Democrats would be inheriting high unemployment rates and 20 million Americans on unemployment benefits due to the coronavirus pandemic.
Such pressures are already evident with Biden promising to expand employment-based immigration, but “based on macroeconomic conditions.” Noting that the number of employment-based visas (or green cards) is capped at 140,000 per year regardless of “the state of the labour market or demands from domestic employers,” Biden has committed to institute “mechanisms to temporarily reduce the number of visas during times of high US unemployment.” Whereas additional challenges could riddle Biden’s promise of expanding temporary work visas like the H1B, which disproportionately (about three quarters of 85,000 visas each year) go to Indians.
Immigration has increasingly been a defining factor in the Republican and Democratic parties’ shift into their respective populist corners. In 2016, with the vilification of illegal and legal immigration at the core of his campaign, Donald Trump tapped into the socio-cultural anxieties of the American electorate. This mainly informed the defection of the working class (after having voted twice for Barack Obama) in favour of Trump’s electoral prospects in crucial swing states. Thereafter, in the Left’s bid to wrest the mantle of being the “worker’s party,” views once held by a small faction of progressives reemerged. One such view — once held by the likes of Vermont Sen. Bernie Sanders and Ohio Sen. Sherrod Brown — was over temporary work visa programmes driving down wages and putting locals out of jobs. With no definitive study to support that causation, during a primary debate early this year, Biden even ridiculed Sanders’ past position as a “canard.”
However, in a sign of his own turn to the left on the matter, the Biden campaign’s promise on expanding temporary work visas begins with the assertion: “High skilled temporary visas should not be used to disincentivise recruiting workers already in the US for in-demand occupations.” Furthermore, Biden has committed to “a wage-based allocation process” and “enforcement mechanisms to ensure they are aligned with the labour market and not used to undermine wages.”
Biden’s inconsistency on the matter, however, could have been informed by the political pressures of the election. For instance, appealing to progressives could have been the motivation for touting the cause of correcting wage disparities and, thereby, protecting American and foreign workers alike. With this position’s indirect apprehension over immigration, Biden could also deftly avoid his campaign from being “an uneasy fit” with Democrats’ largely pro-immigration posturing against Trump’s anti-immigrant stance over the past four years.
Beyond intra-party positioning, Biden’s stance could have also been informed by the inclination to not be completely out-of-step with the rising nativism amongst the American electorate, as some polls earlier this year reported an unprecedented 79 percent of Americans supporting “a temporary stop to all immigration.” This could have been a key determinant, as it was around that time of increased apprehension over immigration, when Trump signed an executive order to pause (for 60 days) issuance of new permanent residencies or green cards. Subsequently in June, Trump doubled down by not only extending that order until the end of the year, but also expanding its scope to include non-immigrant temporary work visas (like the H1B). This, despite the fact that Trump’s order was set to free up only 525,000 jobs — barely eclipsing the loss of 20.5 million jobs by that time in the US. In October, just days before election day, the Trump administration even announced its intent to do away with the computerised lottery system that is used to grant H1B visas, and similarly called for a wage-based selection process.
Thus, the Biden campaign meticulously crafted its stance in consideration of Trump, once again attempting to rally his base over immigration, and progressives stressing on wage disparity as the supposed cause for America’s woes with unemployment.
With these political pressures now out of the way, one may argue that a dialling back of Biden’s position on temporary work visas could be expected. Whereby, any continuing apprehensions could be limited to only the kind (i.e. inflow of low-skilled workers) that affect the “native-born poor” working class. Whereby, the scope for expanding the H1B programme with a focus on high-skilled temporary visas would reemerge. Such a proposition seems plausible with Biden’s call for moving away from an immigration system that “crowds out high-skilled workers in favour of only entry level wages and skills.”
However, that won’t come without its own set of problems, mainly with Republican resistance that is anticipated with Biden being “the first president in 32 years to come into office” without control of the Congress.
In a sign of Trumpian vilification of legal immigration outlasting his presidency, it was a group of prominent Republican lawmakers who informed Trump’s June executive order. In a letter, they urged Trump to “add guest workers to his 60-day visa ban” and called for extending restrictions to four specific categories (H2B, H1B, Optional Practical Training extensions, and EB5) for “up to a year or until the US employment recovers.” In addition, an effort to single out high-skilled and educated workers for temporary work visas could invite progressive pushback within the Democratic Party as well. As with their criticism — would we remove from the Statue of Liberty the poem welcoming the “poor,” the “wretched,” and the “homeless”? — of Trump’s own idea of prioritising the highly skilled and educated through the proposed “merit-based” system, progressives could pressure Biden on moral grounds.
Hence, at least in the near term, Biden’s focus would be on reversing Trump’s record on temporary work visas, which has overseen an increase in denial rates for H1B petitions — from 6 percent in FY 2015 to 29 percent in mid-2020.
Beginning with actions that wouldn’t necessarily require Congressional intervention, Biden in his executive capacity could start with Trump’s pre-election actions discussed earlier. In this case, there would also be added political capital as Trump’s June order on temporary work visas, for instance, has already incurred a preliminary injunction from a federal judge.
In addition, Biden could focus on undoing regulations issued by the Trump administration that fundamentally alter the dispositions of departments that oversee the H1B system. For instance, the October announcement on scrapping the lottery system followed two highly critical regulations.
This included a Department of Labour wage rule that prices H1B professionals beyond market standards, by inflating the salaries that employers are required to pay: “exactly $100 an hour, or $208,000 a year, for over 18,000 combinations of occupations and geographic labour markets, regardless of skill level and position.” The other being, a Department of Homeland Security regulation on narrowing the definition of “specialty occupation” and new restrictions for companies employing H1B workers at customer locations. Lastly, before leaving office, Trump may also act against the H4 EAD (Employment Authorisation Document), which permits spouses of H1B holders to work in the US. Reports suggest Biden would reverse any new action on H4 authorisations, since their automatic extensions have already been reduced under Trump’s tenure.
From the standpoint of US-India ties, a Biden administration would likely be supportive of New Delhi’s desire to not interlink the H1B matter to other divergences in the bilateral relationship. For instance, the Trump administration had momentarily considered limiting H1B visas to 15 percent for “any country that does data localisation.” Whereas, on exercising continuity over some positive developments of the Trump years, New Delhi would expect the Biden administration to at least continue negotiations over a “totalisation agreement,” which would permit Indian professionals in the US to withdraw their social security deposits after their visas expire.
However, on his promised expansion of the H1B visa programme, Biden will mostly focus on gradually reversing Trump’s record, in order to better gauge the political viability of increasing temporary work visas at a time of economic uncertainty in the US.
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Kashish Parpiani was Fellow at ORFs Mumbai centre. His interests include US-India bilateral ties US grand strategy and US foreign policy in the Indo-Pacific.Read More +