WASHINGTON—The Biden administration is proposing major changes to the H-1B visa program for high-skilled foreign professionals, after the government found earlier this year that companies had colluded to try to increase their chances of winning a coveted visa.
The proposal, published by the Department of Homeland Security in the Federal Register on Monday, would revise how the H-1B visa lottery is run.
Right now, applicants who have an eligible job offer in the U.S. but need a visa to start working can submit an entry into the lottery, and at the end of that entry window, roughly 85,000 visa recipients are selected at random. In recent years, though, the government found evidence that individual applicants were submitting as many as 10 entries into the lottery to increase their chances of winning. Many of those applicants, moreover, were being sponsored by the same handful of small, little-known tech companies.
The growth in this practice was so rapid that entries to the lottery last year hit more than 780,000, up from 270,000 three years earlier, when the new application process took effect.
Under the proposed new process, each person applying for a visa will be weighed equally, no matter how many entries they submit.
Since its creation in 1990, the H-1B visa has served as the primary way companies can hire foreign employees with college degrees, particularly international students educated in the U.S. Though the visa is temporary, it is one of the few—and for international students, often the only—visas that allow foreign employees to eventually become U.S. permanent residents and citizens.
Apart from the lottery changes, the Biden administration is also proposing, for the first time, to allow entrepreneurs to sponsor themselves for an H-1B visa. Until now, with narrow exceptions, professionals on these visas were required to be employees rather than owners of a company.
That change, if successful, would have a seismic impact on Silicon valley, where many of the people launching new tech startups are foreign-born and have few or no long-term options to remain in the country, typically after coming here for college.
Other changes are also intended to make the visa more accessible. For example, the government is proposing to broaden the definition of who can qualify for an H-1B visa outside the lottery process. For example, university researchers and staff at nonprofit hospitals don’t need to compete for visas—they simply receive them if they qualify. Under the broadened definition, someone who is employed at a for-profit hospital but works extensively with a university would also qualify.
The proposal also codifies a practice known as “prior deference,” which means visa officers should approve an H-1B renewal if the applicant has previously been approved to work on a visa for the same job. The Trump administration had done away with that practice, and as a result both processing times and denials of H-1Bs soared. Should the policy be completed as a federal regulation, it would be much tougher for a future president to undo.
In a statement, Jon Baselice, vice president of immigration policy at the U.S. Chamber of Commerce, said his group and large companies were still reviewing the full proposal. But, he said, “it contains provisions that businesses will welcome, including the provisions that codify the agency’s deference policies, as well as those that provide H-1B access to entrepreneurs and startups.”
Business groups were also relieved at what was left out of the proposed changes, which have been in the works since President Biden took office. Initially, Biden immigration officials had wanted to revive a version of a Trump-era proposal to do away with the H-1B visa lottery, instead awarding visas to the prospective employees with the highest salaries.
That move, they felt, would better assign H-1B visas to where they are most valuable to the American economy and help dispel fears that foreign workers are taking jobs away from Americans by accepting lower pay. Opponents of the idea argue that, if done improperly, it could all but shut down options for international students to remain in the U.S., since visas for entry-level jobs would never be approved.
Biden administration officials ultimately discarded the idea, according to people familiar with their thinking, concluding that such a change would need to be enacted by Congress.
Source: Write to Michelle Hackman at michelle.hackman@wsj.com
