Biden presidency raises new hope for tech companies with foreign workers

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As a result of the Trump administration’s moves to restrict foreign work visas, including H-1B, many tech companies are struggling to hire foreign employees with STEM-degrees. But President-elect Joe Biden has plans to overhaul those rules and implement policies that would ease visa restrictions.

H-1B visas allow U.S. employers to temporarily employ foreign workers in specialty occupations. Currently, the U.S. has about 580,000 H-1B visa holders, according to the United States Citizenship and Immigration Services. For new applicants, denials have been rising steadily during Trump’s presidency, to almost 30% in 2020 from 6% in 2015.

Last month, the Trump administration took another step to limit work immigration in the U.S. and announced an overhaul of the H-1B visa program for high-skilled foreign workers. The administration said the move was aimed at protecting American workers, and will require employers to pay H-1B workers significantly higher wages, narrow the types of degrees that could qualify an applicant and shorten the length of visas for certain contract workers.

These new policy changes were especially concerning to the tech community, says Rebecca Bernhard, a partner at international law firm Dorsey & Whitney in both its immigration and employment practices, who has been helping companies navigate the work visa program.

“Tech companies rely on H-1B so heavily because over 60% of the folks who graduate with STEM degrees in the U.S. are foreign,” she says. “So, if you are a company that needs graduates with technology degrees and we have a restrictive immigration policy — then we can't hire the individuals that we've educated.”

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Several lawsuits — by universities, individuals and organizations — have been filed against the new worker restrictions. One of them is by ITServe Alliance, a non-profit organization which has a membership of over 1,200 small and medium-sized companies across the U.S. The firm represents more than 75,000 tech workers, and they have one case pending litigation.

“From an H-1B employer perspective, the last four years have been the worst,” says Kishore Khandavalli, advisory director at ITServe. “We have to see how things roll out [with the new administration], but our thinking is that it can only get better from there.”

Biden plans to increase the number of high-skilled visas, including the H-1B, and eliminate the limit on employment-based visas by country, according to a policy document released by his campaign. Biden is also expected to reverse the recent rules implemented by the outgoing Trump administration.

Khandavalli says they are “cautiously optimistic” that Biden’s win will have a positive impact on ITServe’s case and increase the issuing of foreign work visas.

“Our hope is that the Biden administration comes in and rolls back the new random, haphazard rulemaking that came out over the last month,” he says. “That way, we don't have to fight it in the courts.”

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Many of the restrictions Trump has issued on immigration have been executive orders and are expected to be reversed by the Biden administration, including the travel bans on Muslim countries and the Buy American and Hire American order, which was the main executive order that subjected the work visa processes to scrutiny.

When it comes to the tech industries, these policies hold companies back from hiring qualified applicants, which can negatively impact the U.S. economy, Bernhard says.

“If tech companies are burdened by 18-24 month processes to just legitimately hire somebody, they're going to be behind,” Bernhard says. “If you're making it hard for Google to have its people working in Silicon Valley, they'll just have these people working somewhere else because the work can be done globally.”

Leading up to the election, Bernhard’s clients were weary about discussing the next stages in the immigration process, whether it was for an individual or group of employees whose H-1Bs were going to expire. Since last week, she’s seen an immediate uptick in clients now eager to push the process forward.

“Many of them said 'let's just wait and see what happens to the election,' because they weren't sure where they wanted to invest resources in pursuing additional immigration options if President Trump won, because they knew it would be expensive and timely,” she says. “Now I got a lot of emails over the weekend to schedule meetings to see what we should think about for 2021 from an immigration perspective. People expect it to be more open.”

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