Biden’s H-1B Visa Proposal Has Some Ups and Has Some Down

The Biden Administration’s recently proposed H-1B visa rule strikingly mirrors some of the restrictive language from a 2020 Trump rule. This move, aimed at limiting foreign-born professionals, especially scientists and engineers, has garnered criticism from many.

Key Points:

– The new rule indicates a tighter definition of what constitutes an H-1B “specialty occupation”. The implication? A potentially significant number of foreign professionals may face challenges working in the U.S.

– Interestingly, while the proposed rule has provisions that might benefit employers and students, its restrictions seem at odds with the Administration’s strategy on “attracting and retaining the world’s top talent” and “taking advantage of the worldwide brain drain”.

Delving into the Language:

Both Trump’s and Biden’s H-1B rules employ the phrase “directly related specific specialty.” This seems to narrow down the roles that can be considered for the specialty occupations, making the requirements much stricter.

However, it’s crucial to note that the Immigration and Nationality Act (INA) doesn’t specify that a degree must be in a “directly related” to be a specialty. The emphasis on the exact match of degree and occupation might overlook the reality of the job market where skills and expertise often span multiple disciplines.

Data Speaks:

An analysis of the 2021 National Survey of College Graduates by the National Foundation for American Policy shows that many U.S.-born and visa holder professionals in fields like computer science and chemistry don’t necessarily hold degrees in their exact field of work. This underscores the multidisciplinary nature of today’s workforce.

Potential Ramifications:

Experts fear the proposed changes will prompt USCIS examiners to issue more Requests for Evidence (RFE), burdening employers. With the focus on strict degree relevance, many professionals, despite relevant experience, might find themselves ineligible for the H-1B visa classification.

Companies like Amazon highlight the value of experience and diverse educational backgrounds. Many of their top-tier employees might not necessarily fit the strict “directly related” criterion but are integral to the company’s success.

Moreover, research fields that thrive on cross-disciplinary expertise, like bioinformatics, could be hit hard by these proposed H-1B changes.

Concerns for Third-Party Worksite Placements:

With the proposed rule, the requirements for an H-1B worker placed at a third-party worksite might be dictated by the role’s requirements at the third-party company and not by the petitioner. This can lead to more complexity and potential misinterpretation.

Looking Ahead:

If implemented, the proposed rule might face significant legal challenges, especially concerning its provisions on “Maintenance Of Status” and “Bona Fide Job Offers.” It appears that USCIS might be overstepping its bounds, potentially contradicting existing laws and regulations and other guidelines.


While the intent behind any immigration policy is to protect domestic interests, it is vital to strike a balance and to respect the underlying intent of the H-1B nonimmigrant visa classification. Ensuring that the U.S. remains an attractive destination for global talent is critical for its continued leadership in innovation and technology. The current proposal, echoing past restrictions, might need more nuanced considerations to achieve this balance. Please note again that these are on the proposed changes … Strap yourself in for what promises to bea very wild ride.

If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at for more information.