Biden move to replace H-1B lottery with wage-based selection challenged

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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.”


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“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.

3 Comments

  1. Jake Leone

    The effect on non-profits can be nullified by simply determining what percentage of the H-1b applications are from non-profits. And then distributing that percentage of H-1b visas to the non-profits, using the older (and current) lottery system.

    Changing to a salary based allocation for the rest of the H-1b applications will actually help Silicon Valley companies by making it far more likely they will get the H-1b visas they are requesting, since Silicon Valley companies are generally the ones that pay the highest salaries.

    This is a great rule change, if it ever comes to pass. It will probably reduce the amount of business the immigration lawyers are getting and I believe that is the real reason immigration lawyers are all saying it is a bad rule change. When in fact it is a great rule change for their clients and for workers coming in on an H-1b visa.

  2. jake_leone

    The effect on non-profits can be nullified by simply determining what percentage of the H-1b applications are from non-profits. And then distributing that percentage of H-1b visas to the non-profits, using the older (and current) lottery system.

    Changing to a salary based allocation for the rest of the H-1b applications will actually help Silicon Valley companies by making it far more likely they will get the H-1b visas they are requesting, since Silicon Valley companies are generally the ones that pay the highest salaries.

    This is a great rule change, if it ever comes to pass. It will probably reduce the amount of business the immigration lawyers are getting and I believe that is the real reason immigration lawyers are all saying it is a bad rule change. When in fact it is a great rule change for their clients and for workers coming in on an H-1b visa.

  3. Jake Leone

    There is a very simple solution to prevent any affect on non-profits as a result of the change from a random chance lottery to a salary based allocation of H-1b visas.

    Have each H-1b application also include a checkbox stating it is from a non-profit.

    Count the number of non-profit H-1b applications, count the total number of H-1b applications. Create a ratio = (total non-profit h-1b application)/(all H-1b applications).

    Multiply this ratio by the total number of H-1b visas being distributed.

    For example, if there 65,000 H-1b visas, and 2% of all the applications are from non-profits, then 1300 H-1b visas would be distributed to the non-profits using the old (and rather dumb) random chance distribution method.

    In this way, the rule change would have no affect on non-profits, what-so-ever.

    This rule change will actually reduce the number of H-1b applications, so actually non-profits would have an even greater chance of winning an H-1b visa than before. Many client companies (typically Offshore Outsourcing companies, that pay the lowest salaries) will simply realize they have to turn to the U.S. Free Labor market.

    This should work out fine for tech companies large and small, because in DOJ vs Facebook (available online at the U.S. DOJ, and filed after the election), Facebook admits it finds 30x more local STEM/IT workers than it can hire. Facebook will actually have better access to H-1b visas. And smaller companies can take up the 30 or more fully qualified STEM/IT candidates that Facebook simply doesn’t have jobs for.

    The information obtained in that indictment, was obtained under the threat of a Federal Obstruction of Justice charge. If you or anyone you know has information that runs counter to what Facebook’s own HR employees told Federal investigators, you should bring that to the attention of the DOJ. So far no one, not even Facebook, has filed any counter claim.

    In that indictment, Facebook faces 2600+ counts of discrimination, over just a 1.5 year period, against people of U.S. nationality. Keep in mind that the DOJ settles such cases for about 100k$ per violation, Facebook is facing 2600+ violations of Federal equal opportunity statutes.

    Of course immigration lawyers are against this change. They will say anything to keep the absurd number of redundant H-1b applications coming in, hey it is big business for them. But the reality is this rule change will greatly BENEFIT their clients. Adding in the ability of non-profits to go back to the foolish lottery, if they choose, is nothing a one liner mathematical formula.

    Look, I have no reason to support the change to a salary based allocation. I am an experienced tech employee, I train all those college freshers who then leave the company after their training. Advocating for a salary based allocation will actually create more on the job competition for me. So by all means, keep the foolish and dumb lottery.

    Lawyers advocating for random chance lottery are violating their fiduciary responsibility to keep their clients best interest above their own.

    Offshore Outsourcing companies, which take up around half the H-1b visas, don’t sponsor people for Green Cards and citizenship. Direct employers do, and it is precisely the Offshore Outsourcing companies that will drop out (because they pay the lowest wages) of the H-1b program, and in doing so take the current 1 in 4 chance Silicon Valley companies have of getting an H-1b visa, down to a 1 in 2 (or better) chance of getting an H-1b visa. At the same time, more people on an H-1b visa will be working for direct employers that are willing to get them into a Green Card and eventual citizenship.

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