On Monday, May 17, 2021, under the representation of the American Immigration Lawyers Association (AILA), five nonprofit organizations and businesses filed a lawsuit against President Joe Biden’s administration challenging the move from an H-1B lottery system to a wage-based selection process.
The lawsuit addresses the implementation of a Trump administration regulation that replaced the H-1B random, computerized H-1B lottery with a system that allocates H-1B visa numbers according to the Department of Labor’s four-level wage system. The final rule which was made effective as of March 9, 2021, and later delayed by the Biden administration to December 31, 2021, gives priority in the H-1B selection process to foreign nationals whose offered salary falls within the highest level of their occupation, continuing on to select cases in descending order from OES wage levels III, II and I.
It is believed that the final rule gives an unfair edge to wealthy corporations able to pay workers the most competitive rates, while non-profits and small businesses suffer the loss not being able to hire foreign talent, as their more modest means are unable to support salaries at the highest categories outlined by the Department of Labor. In addition, “educational advocates note many recent international graduates would very likely be shut out of the H-1B program because of the rule.”
The Director of AILA’s Federal Litigation, Jesse Bless stated, "this rule has been unlawful since its inception under the Trump administration and promulgation under former DHS official Chad Wolf. District courts have repeatedly and unanimously ruled that Mr. Wolf lacked the authority to change immigration policy. Even if Mr. Wolf could have promulgated the H-1B rule, it’s substantively unlawful because it directly contravenes U.S. immigration law. Choosing highly-skilled workers solely based on wages arbitrarily aligns a worker’s pay with value, something wrong and unAmerican."
We await a favorable outcome, thereby returning to the H-1B Lottery system for the Fiscal Year 2022 H-1B visa cap.