H-1B Update: Interim Rules Rejected But Final Rule Set For Implementation

The H-1B visa remains squarely in the Trump administration’s spotlight, even during the final days of Trump’s presidency.

In recent weeks, a federal judge has struck out an interim rule proposing changes to prevailing wages, while USCIS has announced a final rule to modify the H-1B cap selection process.

Read on for a summary of both developments.

USCIS to modify H-1B selection process to prioritize wages

USCIS has announced changes to the H-1B cap selection process and existing lottery procedures with the aim of “prioritizing wages to protect the economic interests of US workers”.

The final rule will see modifications to the H-1B cap selection which will affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions.

It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two as established by the H-1B registration final rule.

According to USCIS, the changes are designed to remove the uncertainty of the current lottery process, which makes it difficult for employers to plan recruitment programs.

USCIS also stated the changes should ”incentivize employers to offer higher salaries, and/or petition for higher-skilled positions”.

The final rule comes after the DHS previously published a notice of proposed rulemaking on November 2, 2020, and undergoing public consultation before deciding to publish the proposed regulations.

The final rule will be effective 60 days after its publication in the Federal Register.

Trump’s H-1B visa rule changes rejected by US judge

A US federal judge has rejected proposed changes to the H-1B visa program that would have significantly reduced the number of visas granted annually to skilled non-US workers.

The changes to the interim final wage regulation, announced in October 2020, required employers sponsoring H-1B workers to pay substantially higher wages. This would have resulted in fewer visas being granted to foreign workers, which the Trump administration asserted was necessary to protect US workers who had lost their jobs during the pandemic.

Up to 85,000 H-1B visas are issued each year to skilled foreign workers. Had the new rules taken effect, it is thought as many as one-third of those who have applied for H-1Bs in recent years would be denied.

There were also concerns the changes would have detrimentally impacted US employers, their operations and recruitment drives for those who are highly skilled.

Interim rule struck down

The change was actioned by interim final rule, with no stakeholder consultation or engagement. It was subsequently subject to a legal challenge brought by the US Chamber of Commerce and a number of US universities.

In his ruling on the case, US district judge Jeffrey White sitting in California held that the pandemic did not constitute “good cause” for the Department of Homeland Security and the Department of Labour not to follow the correct regulatory procedures by issuing the interim final wage regulation without advance notice to the public.

In addition, he found that the H-1B changes did not constitute an emergency response, and while the COVID pandemic was beyond the administration’s control, action could have been taken sooner.

The DOL was also ordered to reissue any prevailing wage determination (PWD) issued after October 8, 2020 under the now-invalidated rule. DOL is expected to issue a procedural update for affected employers.

The decision remains open to appeal, although it is thought the Trump administration may focus its resources elsewhere during its remaining days.

US immigration advice

NNU Immigration are specialist US attorneys based in London. For advice on US visas or immigration, including guidance on policy and rule developments, please contact us.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: December 31, 2020