An H-1B visa regulation that was intended to remove the existing lottery system appears to be about to go as the current administration is no longer defending the rule’s implementation.

This regulation would have ended the lottery system for H1-B visas and instead awarded visas based on the salary level of the job. The ranking for receiving visas would be from highest salary to lowest salary level. Under the lottery system, if there are more applications for H1-B visas than the available 85,000, the U.S. Citizenship and Immigration Services (USCIS) uses a lottery to determine who receives the visas. For 2022, there will be a lot of applicants in the lottery since there were over 300,000 H1-B registrations for visas in 2022.

The H1-B visa petitions are important since they are the primary way for foreign nationals, which includes international students, to be allowed to work long term in the United States. But, under the rule published by the Trump administration, international students would have been far less likely to obtain H1-B visas.

Due to this issue, a motion for summary judgment was filed by the plaintiffs in Humane Society of NY, et al. v. Alejandro Mayorkas, et al. The plaintiffs argued in their complaint and motion for summary judgment that the regulation is actually illegal since Chad Wolf was not legitimately the Acting Secretary of Homeland Security at the time the regulation was issued. The plaintiffs also claim that it is unlawful to give H1-B applicants with higher salaries priority in the lottery.

The Biden administration responded that the new regulation was released by an authorized official and that it was consistent with the Immigration and Nationality Act and the Department of Homeland Security. But, a judge ruled against the regulation because Mr. Wolf was not lawfully appointed as Acting Secretary. The judge did not rule on the other arguments the plaintiff made.

The lawyers representing the plaintiffs also claim that the regulation is illegal since it issues visas based on wage levels; whereas the H1-B statute states that the visas are to be issued in the order in which they are filed. On November 30, 2021, the Department of Justice lawyers filed a motion for dismissal which was unopposed. But, some critics are concerned that a similar regulation will be issued.

Employer Takeaway

This development may be promising for many companies looking to hire younger and lower earning talent as well as recent foreign national graduates. However, it is important to remember that hiring foreign nationals can come with a considerable increase in complexity, and nowhere is this more true than completing the Form I-9. Many employers struggle to comply with the complex documentation and verification requirements resulting in needless penalties. The best way to avoid this is with an electronic I-9 management tool which can guide responsible personnel and ensure secure storage and send reminders when action is required.