The Need for a More Merit-Based H-1B Selection Process

Parsing Immigration Policy, Episode 48

By Mark Krikorian and Robert Law on April 7, 2022

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Every spring, the H-1B lottery for “temporary” white-collar workers takes place. The H-1B visa program is often referred to as a program exclusively for the “best and brightest”, but the overwhelming majority of the 85,000 visas go to alien workers at the two lowest prevailing wage levels. Why would the best and brightest work at a steeply discounted rate?

The Trump administration attempted to make the program more merit-based through rulemaking. Candidate Joe Biden endorsed the rule in his platform, calling for a more merit-based immigration system. Yet the Biden administration killed the change despite it being a final rule, having gone through the notice and comment period, and having already been published and scheduled to take effect.

Robert Law, the Center’s director of regulatory affairs and policy and a former director of policy at USCIS, discusses how the Trump administration sought to revise the H-1B selection process by allocating H-1B visas based on the highest skills and wage level rather than at random, and describes how the H-1B program will now once again be inefficiently administered by allowing the lowest qualified foreign workers to capture the majority of the visas.

Using the H-1B rule as an example, Law describes the broader Biden administration’s strategy to bypass the Administrative Procedure Act (APA) requirements to neuter regulations it dislikes – a new and growing form of lawfare. But he also provides suggestions of potential safeguards that could be adopted.

In his closing commentary, Mark Krikorian, the Center’s executive director and the host of Parsing Immigration Policy, speaks to the potential impact of the Biden administration’s lifting of Title 42-- a public health measure that allows DHS to quickly expel illegal migrants without a hearing—on May 23. DHS estimates that as many as 18,000 migrants could be apprehended a day after Title 42 ends. How will the Biden administration handle the expected surge? Listen to Krikorian’s prediction - the administration will not halt the surge; rather, they will use a recently crafted regulation to launder it by immediately granting asylum to hundreds of thousands who jump the border.


Mark Krikorian is the Executive Director of the Center for Immigration Studies.


Robert Law is the Director of Regulatory Affairs for the Center for Immigration Studies.


USCIS Runs H-1B Lottery

DHS Withdraws Trumps Merit-Based H-1B Rule

Administration Fears Post Title 42 Onslaught at Southwest Border

Biden Administration Finalizes Plan to Rubber-Stamp Asylum Grants

Who Will Be in Charge of Asylum?

The White House Does, in Fact, Have a Post–Title 42 Plan

Title 42 Reportedly to End May 23


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Intro Montage

Voices in the opening montage:

  • Sen. Barack Obama at a 2005 press conference.
  • Sen. John McCain in a 2010 election ad.
  • President Lyndon Johnson, upon signing the 1965 Immigration Act.
  • Booker T. Washington, reading in 1908 from his 1895 Atlanta Exposition speech.
  • Laraine Newman as a "Conehead" on SNL in 1977.
  • Hillary Clinton in a 2003 radio interview.
  • Cesar Chavez in a 1974 interview.
  • House Speaker Nancy Pelosi speaking to reporters in 2019.
  • Prof. George Borjas in a 2016 C-SPAN appearance.
  • Sen. Jeff Sessions in 2008 comments on the Senate floor.
  • Charlton Heston in "Planet of the Apes".