DHS removes Trump-era H-1B rule narrowing the definition of “speciality” vacated by court.
Even as the Biden administration removed a Trump-era rule narrowing the definition of “speciality” for H-1B work visas, its plan to move from lottery system to wage-based selection has been challenged.
Five nonprofit organizations and businesses, represented by the American Immigration Lawyers Association (AILA) among others filed a lawsuit on Monday in a US District Court challenging the “disastrous” H-1B lottery rule.
Entitled Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, the H-1B lottery rule was published on January 8, less than two weeks before President Donald Trump’s exit.
After President Joe Biden’s inauguration, the Department of Homeland Security (DHS) announced in February, that it was delaying the implementation of the rule from March 9 to Dec. 31.
More than 70% of the 85,000 H-1B visas issued every year go to Indian professionals hired from India or from US schools and colleges by American companies such as Facebook, Google and Microsoft, as well as by US subsidiaries of Indian companies such as TCS, Wipro and Infosys.
READ: H-1B visa lottery system to continue until year end (February 5, 2021)
“Choosing highly-skilled workers solely on the basis of wages arbitrarily aligns a worker’s pay with value, something wrong and unAmerican,” Jesse Bless, AILA’s Director of Federal Litigation stated.
“This rule has been unlawful since its inception under the Trump administration and promulgation under former DHS official Chad Wolf,” he said. “District courts have repeatedly and unanimously ruled that Wolf lacked the authority to change immigration policy.”
“Even if Wolf could have promulgated the H-1B rule, it’s substantively unlawful because it directly contravenes US immigration law,” Bless asserted.
Jeff Joseph, Senior Partner of Joseph and Hall, PC, stated, “Dealing with the Department of Labor often feels like The Hunger Games. Everyone is required to play the game, but no one knows the rules and the rules are constantly changing.”
“This is not a game and under this misguided rule, the odds are definitely in favor of the largest and wealthiest of businesses,” he said.“Smaller and rural businesses are left out of the lottery for reasons that are arbitrary, illegal and not rationally related to the economy,” he said.
READ: USCIS replaces H-1B lottery with wage-based selection (January 8, 2021)
Charles Kuck, managing partner of Kuck Baxter Immigration LLC said, “A ‘lottery’ that is more of an auction for skilled work visas is both illegal under federal law and unjust by any standard, as it places individuals who live in more expensive locales against those equally necessary and skilled workers who live in rural and less expensive areas.”
“Equitable distribution of H-1B visas is necessary to maintain our country’s global competitiveness.”
Greg Siskind, founding partner of Siskind Susser PC noted, “The H-1B statute was intended to make sure that US workers are not being underpaid, not to create a system where nonprofit organizations are never able to recruit vital talent because they can’t compete with the for-profit sector.”
“Nor was it intended to kneecap universities and hospitals by making it extremely difficult for graduating students and medical residents to qualify for H-1B visas.”
“This rule may have sounded good to the people who came up with the idea, but it will cause disastrous collateral damage,” Siskind said.
According to a recent study by the National Foundation for American Policy, the wage-based system will make it harder for international students to get a work permit in the US.
Meanwhile, the Biden administration on Tuesday removed a Trump-era H-1B rule seeking to narrow the definition of “speciality” for qualifying for H-1B work visas.
The Trump administration had on Oct. 8, 2020, issued the rule titled, Strengthening the H-1B Nonimmigrant Visa Classification Program.
It was ostensibly intended to ensure US companies could use the visa program to make “real offers” to “real employees” and not to hire foreigners as “low-cost replacement” for qualified Americans.
A bachelor’s degree wasn’t sufficient under that rule. Instead, a bachelor’s degree in a specific field related to the job was required.
The rule couldn’t be implemented, though, as it was vacated on Dec. 1, 2020, by the US District Court for the Northern District of California. DHS has now removed it altogether from the Code of Federal Rules.