One of the last Trump-era attempts to adjust the H-1B visa is officially dead on a technicality.
U.S. District Judge Jeffrey White of the United States District Court for the Northern District of California has ruled that the Trump administration’s “Final Rule,” designed to transition the current H-1B lottery system to one based on wage levels, is invalid because then-acting DHS Secretary Chad Wolf “was not lawfully appointed… at the time the Final Rule was approved.”
The Final Rule was originally scheduled to take effect in March 2021, before the Biden administration delayed it to December. “At this time, current rules are expected to remain in place, under which USCIS will select registrations through a random lottery as it has in the past,” immigration law firm Berry, Appleman & Leiden LLP wrote in a blog posting about the judge’s ruling. “The government has not yet indicated whether it will appeal the ruling. We cannot rule out that the Biden administration could pursue a new regulation to implement a wage-based H-1B allocation process, but this is unlikely to happen before the upcoming cap season.”
In theory, though, the door is still open to the Biden administration readjusting the H-1B system to accept applicants based on higher wages. Biden’s proposed U.S. Citizenship Act of 2021, for example, would prioritize visas based on wages, and give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. In August, Biden’s first regulatory agenda also hinted at the administration’s intention to “modernize” H-1B requirements, although details remain vague; it’s not outside the realm of possibility that some of those “modernizations” could include salary regulations for H-1B applicants.
Tethering H-1Bs to higher wages likely wouldn’t have a massive impact on companies that use the visa in a limited fashion to draw highly specialized talent from overseas. However, higher minimum wages would have a significant impact on the budgets of the consulting and business-services firms that apply for many thousands of H-1B visas every year, then subcontract those H-1B workers to other companies. Critics of the H-1B system have argued that an application system based on higher wages would curb abuse of the visa.
