H-1B Wage Level Selection Regulation Set Aside
A Department of Homeland Security regulation seeking to replace the H-1B cap lottery with a wage level selection process has been invalidated by a US district judge.
In the case of U.S. Chamber of Commerce v. Department of Homeland Security, Judge Jeffrey S. White found in favor of the US Chamber of Commerce on the grounds that then-Acting DHS Secretary, Chad Wolf, was not serving in his role lawfully when the regulation was formally passed.
The regulation originated under the Trump Administration as part of an objective to reform the H-1B program. The rule would have seen the introduction of a selection process based on the Department of Labor’s wage level system, replacing the current H-1B cap lottery which issues up to 65,000 H-1B cap select visas, plus an additional 20,000 for those with advanced degrees.
Implementation of the rule was postponed by the DHS from March 9 2021 to December 31, 2021 following President Biden’s regulatory freeze.
The Trump-era H-1B wage selection rule has now been set aside. It remains to be seen if the Biden Administration will take action to appeal the decision.
The regulation also continues to be subject to a separate legal challenge in Humane Society of America v. Mayorkas.
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This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
