Wednesday, October 13, 2021
The Biden administration has urged a D.C. federal judge to uphold a Trump-era policy to award H-1B specialty occupation visas by salary rather than by lottery, saying the policy is procedurally valid and consistent with the Immigration and Nationality Act. The argument was made in a summary judgment motion (read on Law360).
In the closing months of the Trump administration, the Department of Labor (DOL) proposed a rule that would assign H-1B visas based on wages, as opposed to the current lottery system. The DOL rule would have raised the lowest possible wages that companies could have offered for workers on the H-1B, H-1B1, and E3 visas. The goal, added a DOL press release at the time, was to “improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed U.S. workers.” A few months after Biden took office, the DOL sought public input on fair H-1B wage levels, indicating that the concept was still alive in the halls of government, although it delayed implementation of the actual Trump-era rule until November 2022.
Although the Biden administration seemed interested in continuing some version of the plan, several lawsuits enjoined the rule. It was unclear whether it would continue into a new administration (Biden's proposed Citizenship Act of 2021 favors a wage-based H1-B and DOL sought public input on fair H-1B wage levels,). For more background on the H1-B and the system of awarding the visas by salary rather than by lottery, see writings by Stuart Anderson in Forbes.