President Biden’s U.S. Citizenship Act of 2021 would overhaul the nation’s immigration system, offering a pathway to citizenship for undocumented immigrants who complete a number of milestones. However, it may also retain one crucial H-1B reform proposed during the Trump administration. 

Both the Senate and House bills propose prioritizing visas based on wages, while giving broad latitude to the Secretaries of Homeland Security and Labor to determine what’s appropriate. Here’s the actual language, found in Section 3407 of both bills:  

“In determining the order in which visas shall be made available to nonimmigrants described in section 101(a)(15)(H)(i)(b), and to any other category of non-immigrants deemed appropriate by the Secretary of Homeland Security, the Secretary of Homeland Security, in consultation with the Secretary of Labor, may issue regulations to establish procedures for prioritizing such visas based on the wages offered by employers.’’ 

The Trump-era version of this rule would have effectively disposed of the current H-1B lottery, which is based on random selection, in favor of choosing high-wage applicants. The Trump administration positioned the maneuver as a way to ensure the H-1B is used as intended: “If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.”

But at the beginning of January, U.S. Citizenship and Immigration Services (USCIS) announced that it would delay the implementation of that rule, ostensibly because it needed more time to actually implement elements of it. “The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule,” read USCIS’s official statement on the matter.

Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School, told Bloomberg Law that the proposal in the U.S. Citizenship Act of 2021 is “similar” to the Trump-era rule, but that the Departments of Homeland Security and Labor also had the latitude to not implement it. 

For 2021, the H-1B lottery is proceeding as planned. How it looks next year, though, could hinge on whether Biden’s sweeping immigration bill becomes law, and whether his administration wants to implement a wage-based system.